Tuesday, February 28, 2017

Enough with the hyperbole

If he wasn't the son of the late Mzee Jomo Kenyatta and if he wasn't the heir to a half-a-billion dollar fortune, I would sympathise with Uhuru Kenyatta because of all the sweeping, unprovable accusations made against him, like the one that he is made in the same mould as Donald Trump and therefore, he wants to "destroy the press". Uhuru Kenyatta, President and Commander-in-Chief of the Kenya Defence Forces, isn't interested in destroying the media or turning the media into his lackey: the media already is a lackey and anyone that says otherwise is blind. Or stupid. Or both.

There is a very big difference between the all-but-forgotten Dennis Galava and the true owners of the Daily Nation, the Saturday Nation and the Nation on Sunday. Mr Galava is no doubt a talented journalist, capable of distilling the essence of moment in our history, identifying the key issues that Kenyans must focus on and set it down on paper in a way that will make most readers pay attention. But Mr Galava is not the media nor is he a representative of the media nor the media house that once employed him. He is a journalist. He has his ethics. The Nation Media Group, no matter how much personhood the law grants it, is not a journalist and neither are the other companies that make up "the media" in Kenya. 

Mr Galava could be jailed for reporting the news; it would be unconstitutional, but it could be done on one pretext or the other. Or, to prevent his news stories from being read, he could be fired from his job. He could self-publish on the internet or try and find financing for his own newspaper, but, come on, who would bother to read any newspaper that isn't the Daily Nation, the Saturday Nation, the Nation on Sunday, the Standard, the Standard on Sunday, the East African, the Star, the People or the Business Daily? What is important to remember is that neither of these companies can be jailed; they can be disbanded, their registration withdrawn by the Registrar of Companies, but they can't be jailed because though they may be "the media", they are not journalists.

Journalists will always report the news and how they report the news depends entirely on whether or not their employers, the "media houses" believe that there is money to be made by reporting news that, for example, Uhuru Kenyatta would want to suppress. Journalists and "media" companies, unless they are employed or wholly owned by the government, don't have a right to government revenue in the name "ad buys". They can sell their advertising services to the rest of the private sector; but they cannot claim that their existence relies solely on the government's need to buy ad space to inform the people of available jobs in the Ministry of Mining or that the National Assembly has invited the public to comment on the Moveable Property Security Rights Bill, 2016. (Okay, that latter one is really important.)

But, surely, it is not the business of the taxpayer to subsidise the media companies who will in turn charge the same taxpayer an exorbitant fee for their newspapers, is it? I have no problem with my taxes being spent on more important things, like the facilities that doctors are demanding from the government before they can return to work. The same journalists who were all for the reduction of the public wage bill because even clerks are paid too high in the public service, should be all for the reduction in all unnecessary expenses by the government, such as extortionate ad buys. When journalists are jailed for being journalists, like it happens in Russia, Kyrgyzstan, Iran, Saudi Arabia or Zimbabwe, yes, the media (formerly known as the free press) is under threat. When government wastes less and less money on ad buys, not so much.

Good health or good healthcare?

How much does it cost to ensure that every Kenyan is in good health? Who should bear this cost? There is a school of thought that argues that your health is your own affair and that the government should expend the minimum amount of national revenue to address your healthcare concerns. There is another school of thought that argues that it is the responsibility of the government to ensure that every Kenyan is in the best possible health.

We should begin by defining what "good health" means. Article 43 states that we are entitled to the highest attainable standard of health, including healthcare and reproductive healthcare services. But that is not the definition of "good health", is it? Good health is an outcome of very many factors, from environmental factors such as clean water and clean air to dietary ones such as how much food one consumes, the quality of that food, and the dietary value of that food. It includes where we live, where we sleep, the physical and mental stresses we undergo, the stability of our immediate and extended families, the availability of recreational facilities including playing grounds, parks, bars, libraries, cinemas, restaurants, discotheques, swimming pools and bicycle lanes.

The healthcare "system" is an important factor in our continued good health but it is not the only important factor. Some healthcare models emphasise prevention of ill-health over treatment of illnesses or diseases. Public policy in these instances is geared towards encouraging healthier lifestyle choices. For example, the campaign to reduce cigarette smoking attempts to modify human behaviour regarding this addictive habit. High taxes, a ban on advertising and restrictions on packaging design are all tools that governments have employed to reduce the total number of new cigarette smokers, make it difficult for habitual smokers to persist in the habit, and reduce the overall number of new patients suffering from health problems associated with cigarette smoking such as lung cancer, mouth cancer, emphysema, asthma, diabetes and low sex drive.

The healthcare system of hospitals, doctors, nurses, dentists, pharmacists and other specialist medical practitioners such as radiologists, urologists, podiatrists, ophthalmologists, psychiatrists, orthopaedists, oncologists and cardiologists is frequently called in to deal with the outcomes of poor health. It is set up to treat patients in poor or failing health. It isn't set up to encourage healthier living. And if it were, it would have to do so hand in hand with a cleaner environment and restricted access to substances that harm health such as cigarettes, alcoholic drinks, saturated fats, carbonated beverages, untreated drinking water, uninspected meat or meat products, processed sugars and vehicle exhaust emissions.

Good health is not simple to attain; it requires the concerted efforts of both the government and the individual, public institutions, private sector organisations and consumers, a balance between civil liberties and public laws. Reducing good health to simply what doctors can and cannot do is dangerously deluded. And the same goes for a healthcare system. Sooner or later, as the conflict between doctors and the government continues, we must ask whether or not our efforts have led to good health, and if they have not, whether or not our efforts have led to a good healthcare system, and if they have not, whether or not the outcome of the negotiations between doctors and the government will lead to both good health and a good healthcare system.

Friday, February 24, 2017

Monkey + AK-47. What could go wrong?

Who among you remember that day when the agents of a company that had a contract with the Government of Nairobi City County dumped a tipper-load of stinking-to-high-heaven garbage in front of the main gate to the Kenya Broadcasting Corporation on Harry Thuku Road, because the parastatal had failed to settle its dues with the county government? I do. 

The incident came to mind when the managing director of an energy-sector company that distributes the fuel products of a global oil company went, in person, to the repossession of the physical facilities at a petrol station which was at the heart of a commercial (and, some say, political) dispute between the company and the operator of the petrol station.

The reason I see parallels between the two events is that in Kenya, business activities are sometimes an extension of political activities. The KBC is a parastatal, a state-owned broadcaster, which enjoys a certain measure of protection from the application of some rules, especially because it is located in the Capital City, a county that is under the political administration of the Minority Party. The governor of Nairobi has singularly confirmed that what academic and professional credentials are provided on a piece of paper are irrelevant to the management of a county government if the candidate is a shameless self-promoter with the common touch of a leper, but also that when it comes to the management of political conflicts between him, his party and the Majority Party, he lacks any kind of touch.

Rather than find a political solution that gave both his government and the information ministry, which is nominally responsible for the KBC, a win/win solutioon, the Governor went went to DefCon 4 and dumped stinking rubbish in front of KBC's premises. How an act of vandalism was meant to compel either the KBC or the ministry to pay what it owed the county government  remains a mystery only the pin-heads in the executive suite at City Hall can explain.

The same is true of the business-cum-political dispute between the oil company MD and his tenant, a senator representing the county. The senator had demonstrated a certain political independent streak that rubbed his business partner the wrong way and regardless of the terms of the contract between the two men, the MD was determined to make an example of the "disloyal" senator. When an opportunity presented itself to turf out the senator from the petrol station, the MD took it and ran.

Both sides to the dispute hired gangsters to protect their interests. Both gangs confronted each other at the petrol station ending up in a classic Mexican Standoff, except the other-bodied senator was in a chair wielding a pistol while the MD was on his feet rallying his troops. The incensed senator was not letting the contract voided without a fight; when the MD casually and dismissively turned his back on the senator, the senator fired off a round past the MD's ear, sending bystanders and gangsters fleeing in all directions. It remains a mystery why both the MD and the senator were both on site. The mystery is cleared up when one remembers that the MD's failed political ambitions are on a lifeline held by the leader of the majority Party, leaders who are unhappy with the mule-headed independence of the senator and who are unwilling to separate business from loyalty.

A win-win scenario was possible between the MD and the senator. If the senator kept it quiet that he was the MD's senator, his independence wouldn't have caused the MD to have to prove his loyalty to the Majority Party by throwing off his petrol station. Neither party comes out of this smelling of roses: the senator comes off as a trigger-happy madman; the MD comes off as the king of brown-nosers willing to put his life in danger to keep himself in the good graces of the party leadership.

Politics is a zero-sum game in Kenya. There are never any win-win scenarios. As a result, close shaves such as vandalism and shots-across-bows (literally), tend to escalate into blood feuds that rope in entire families, communities and ethnicities. The line between mass bloodshed and political live-and-let-live is wafer-thin. More often we are on the wrong side of that line. Governors, senators, parastatals and business tycoons are proof that we are monkeys-with-AK-47s when it comes to politics.

Can money and power buy good health or resurrections?

Nderitu Gachagua has died. He was undergoing specialised treatment in the United Kingdom. He had, in 2016, spent months undergoing specilised care in India, another Kenyan doing so in India because of the state of healthcare in Kenya. He had undergone specialised treatment in the UK earlier in 2015 too when he spent two months in hospital. Mr Gachagua should have resigned. There is simply no way he could have successfully led his county government from hospital beds all over the world.

It is for this reason that the National Super Alliance should rethink its lineup. So long as it has Mr Odinga in the top tier, NASA is as wedded to the idea of One True Leader as Nyeri's politicians were in their loyalty to a man whose pancreatic cancer eventually killed. In the late Mr Gachagua's case, the office of governor was literally a matter of life or death.

Michael Kijana Wamalwa died in office as Vice-President. He would not or could not step down even when it became clear that he would not be walking away from his London hospital bed. Mwai Kibaki refused to step down even when it was clear that the lucid-minded former Makerere University lecturer, former London School o Economics-trained economist, former leader of the official opposition, former finance minister and former vice-president was not the same man who was, as rumour had, sustained by the incredible medical alchemy of doctors and pharmacists. His fateful decision not to step down contributed to the bloodshed of 2007/2008.

In Kenya, public officers, whether elected or appointed, never step down, especially if they are serving at the highest levels of the government. No matter what the reason, be it ill-health, accusations of corruption, incompetence or the mistakes of their underlings, they never step down. They would rather be carried out of office, feet first. Sometimes, as in the case of Mr Wamalwa and Mr Gachagua, the feet-first route is the only one left and it begs the question, do they really believe that money and power can buy good health or secure resurrections?

Wednesday, February 22, 2017

Faking it till we make it

Elections matter. They don't matter more than the rule of law or the integrity of the executive, but they matter. Anyone who argues that elections are an expensive boondoggle for choosing political leaders and determining national priorities fails to take into account the problems of restricting political activity to the narrowest elite slice of the population of a nation. Elections matter because they are proof of the resilience or weaknesses of a political culture. In Kenya, both are in stark display in 2017.

The Coalition for Reforms and Democracy (CORD), the Minority coalition in Parliament, has entered into an agreement with the Amani National Congress (ANC) to form a "superalliance" called the National Super Alliance (NASA) to take on the spawn of the Jubilee Alliance now finally known as the Jubilee Party (JP). I don't think it really matters what the manifestos of the NASA or the JP really are; no political party, alliance or coalition has ever even tried to live up to the lofty promises in an election manifesto.

I don't think that the alliances, superalliances, coalitions and agreements are seen by many as the ethnic vote-bank politics that have come to define election contests in Kenya as a bad thing. After all, even children and politicians with mixed ethnicities and mixed heritages are forced to choose the one they consider the "dominant" one, usually the one their father belongs to. Ethnicity, both positive and vile, infuses every aspect of politics and is enshrined in the Constitution in the anodyne phrase "the regional and ethnic diversity of the people of Kenya" which tells all you need to know about the place of ethnicity (code for "tribe") in Kenya.

What matters is that Kenyans are at least paying lip-service to the ideals of the constitution on multipartyism, pluralism, tolerance and the peaceful transfer of political power between one political regime and the next. In the United States they have a saying: fake it till you make it. Perhaps if Kenyans fake political liberalism long enough and hard enough, Kenyans might actually build a nation and political culture that espouses all the values and principles that make our ridiculously long-winded and dull constitution the most progressive and liberal in the world.

My case for disarming the police

For as long as I have been alive, the police have always been armed. They ordinarily bear the Heckler & Koch G3 battle rifle, the Kalshnikov Concern AK-47 assault rifle or the Heckler & Koch MP5 submachine gun. Few of them carry side-arms, sniper rifles, general purpose machine guns or light machine guns, except when dealing with large-scale unrest. It is inevitable, thus, that if you encounter policemen on patrol, they will inevitably be armed with assault or battle rifles.

I believe this lies at the heart of the problems with policing in Kenya. When it is founded on an armed, national police force, renaming it as a police service, will not resolve the inherent contradictions. A police service should be established for the safety of the people first, and then the safety of their property. Things like the security of the state and the stability of the government are dealt with by the security services and the defence forces.

A police service that is called upon to perform both public safety and national security functions will develop a schizophrenia from all the pressure bearing upon its usually meagre resources, particular its human resource. The National Police Service is called upon to perform both functions, even when the Kenyan intelligence community can be tasked with a great deal of the national security work. The pressures that have come to bear on the National Police have, I believe, contributed to increasing cases of insubordination, indiscipline and violence among professional colleagues.

In recent weeks policemen have turned their firearms on each other, turned their guns on their intimate partners, committed suicide or threatened or attacked their commanding officers. This too during an expansion in their material capabilities, from the purchase of more guns to the purchase of more military and paramilitary materiel.

The need to protect the country from terror attacks has been used to justify the continued presence of armed police on our streets and in our neighbourhoods. However, from the response to the attacks at the Westgate Mall, Mpeketoni in Lamu and Garissa University College, it is clear that the existence of armed police did not prevent the attacks. It however, revealed the intelligence failures at the continued menace of terrorist groups.

A reorientation in policing towards its demilitarisation and a focus on public safety might also improve the national police's disciplinary challenges. The fewer policemen that are armed, the fewer policemen that are tempted to use their firearms to settle personal or professional scores with each other or with civilians. This might also reorient the relationship of the national police service with the communities that it is charged to keep safe; fewer encounters between the police and civilians will be likely to escalate into violent confrontations if the civilian population doesn't feel like it is living under siege.

Better co-ordination by the national police and the intelligence community might identify communities that will require armed police patrols; however, this should be the exception and not the rule. A generally disarmed police service has the opportunity to forge better community relations which will help identify threats to the safety of the people or private property before they escalate into crimes that warrant a police response. Of course, each police district will still need a small contingent of armed police to respond to situations where the force of arms are necessary but, again, this should be the exception and not the rule.

One other outcome might be the redirection of scarce resources towards the improvement in the quality of life of rank and file police officers and, perhaps, a reduction in corrupt acts among them. If less money is spent buying more guns and ammunition, the savings can be directed at police housing and other social amenities for police officers and their families, reducing the psychological pressures they're under, improving discipline within the ranks and reducing the chances of police officers turning their firearms against each other, intimate partners, other civilians or their commanding officers.

Tuesday, February 21, 2017

Sex and Murder

Serena Williams. She, I can recognise from a hundred paces. Maybe even two hundred paces. She is, without a scintilla of a shadow of a doubt, the most important athlete. Ever. More important than Lewis Hamilton. More important than "Iron" Mike Tyson. More important than the walking refrigerators known as American football players. She has dominated a sport that was for the longest time the preserve of doped-up ex-SovBloc athletes and she dominated it when even today, many of her challengers are still doped up. If there are athletes to be conferred with sainthood for their complete domination of the sport, Serena Williams would be one of them. Together with Mohammad Ali.

Ms Williams reminds me of the very pregnant Beyoncé Knowles-Carter. No, Ms Williams doesn't remind be of Queen Bey because Ms Williams has put on a bit of weight or anything like that; she reminds me of Beysus because Mrs Knowles-Carter is the most dominant musician I have heard of for the past decade. From what I have seen, the Beyhive is a cross between a world-dominating religion, a cult and a gang: only its members truly understand what it is to live in a world in which a magical creature as Beyoncé lives.

Speaking of entertainment, billions of English-speaking women (and the men who simply can't resist) are glued to idiot boxes because of Shonda Rhimes, a place my beloved and her cohort know as ShondaLand. In ShondaLand two TV shows occupy pride of place: Grey's Anatomy and Scandal. In Grey's Anatomy, doctors spend almost a whole hour every week sleeping with each other, planning to sleep with other, regretting that they slept or didn't sleep with each other...and dying in creatively violent ways. In Scandal, political operatives, congressmen, first ladies and presidents spend almost a whole hour every week sleeping with each other, planning to sleep with other, regretting that they slept or didn't sleep with each other...and dying in creatively violent ways.

What these women have in common is that they bear the same skin colour as some of my favourite athletes and entertainers: Maria de Lurdes Mutola, Blessing Okagbare, Congestina Achieng, Leleti Khumalo, Mbilia Bel, Nayanka Bel and Mary Atieno. One day, a Kenyan won't have to pine after ShondaLand to get their fix of sex and murder. If a Kenyan is very, very lucky, of course.

Can you?

Can you afford food, shelter, healthcare, transport, electricity, and water services? (Okay, okay, when it comes to water services, can you afford to pay for a water bowser of "clean" water in the middle of this drought?) In addition, can you afford to save for your retirement, entertainment and a holiday somewhere nice that is not shags? Finally, if you are employed, can you afford to go a year without a job or if you are self-employed and "in business", can you afford to live off the proceeds of your hustle for a year?

These questions keep me up because on almost every metric, "barely" seems to be the only word that comes to mind. I wonder how many Kenyans listen to the "booming economy" PR with agreement. I wonder how many believe the PR gurus when they hashtag you with #TukoPamoja.

Mr Owino is right; they're priority payments

I have written about the Consolidated Fund and Consolidated Fund Services. I argued,
Consolidated Fund Services...is an accounting term relied on by the National Treasury to make the payments required to be made as charges on the Consolidated Fund...Consolidated Fund Services encompasses all the payments that are a charge on the Consolidated Fund, that must be paid and are ordinarily not subject to the appropriations processes of the National Assembly.
Subsequently, Kwame Owino and I had a twitter argument on whether these charges on the Consolidated Fund are priority payments or protected payments. Mr Owino argues that they are priority payments, while I argue that they are protected.

This is what the Constitution provides in Article 221(6) and (7):
(6) When the estimates of national government expenditure, and the estimates of expenditure for the Judiciary and Parliament have been approved by the National Assembly, they shall be included in an Appropriation Bill, which shall be introduced into the National Assembly to authorise, and for the appropriation of that money for the purposes mentioned in the Bill.
(7) The Appropriation Bill mentioned in clause (6) shall not include expenditures that are charged on the Consolidated Fund by this Constitution or an Act of Parliament.
The purpose of an Appropriations Act is to authorise the withdrawal from the Consolidated Fund of the money needed for [the] expenditure but because charges on the Consolidated Fund are not subject to the approval of the National Assembly, they are not included in the Appropriations Bill. However, because they are part of the estimates of national government expenditure, they must be must be approved by the National Assembly.

I admit I am more confused now than when Mr Owino and I argued yesterday, and I think that in the absence of a clear interpretation of Article 221, Mr Owino is probably right about the prioitisation of payments that are charges on the Consolidated Fund. I say so because there are two stages in the appropriations process: approval of the estimates by the National Assembly and the introduction of an Appropriations Bill in the National Assembly. The approval of these charges fit into the first part; their payment is not subject to the Appropriations Bill.

Non-discretionary payments, the term Mr Owino and I agree describes these charges, because they are not subject to the passage of an Appropriations Bill by the National Assembly, may be paid as soon as the National Assembly approves their estimates. It isn't an explicit rule but it is a logical one. The National Treasury has made it a convention to pay them out first, thereby prioritising them.

Mr Owino, I will no longer quibble over whether the protected charges are also priority charges. You were right and I was not.

Monday, February 20, 2017

The Consolidated Fund

The following sentence caught my eye:
However, the Constitution prescribes a minimum level of payments that must be made through Consolidated Fund Services (CFS). (Kwame Owino, Why the State Can't Afford to Give Every Kenyan Money)
To be blunt, the Constitution doesn't prescribe any such thing. The following are the payments which are a charge on the Consolidated Fund established under Article 206 of the Constitution: the remuneration and benefits of the President and Deputy President (Art. 151), the remuneration and benefits payable to or in respect of judges (Art. 160), the expenditure of the judiciary (Art. 173), the public debt (Art. 214), and the remuneration and benefits payable to a commissioner or holder of an independent office (Art. 250).

In respect of any minimum payments to be made in accordance with the Constitution, presumably as a charge on the Consolidated Fund, though the Constitution is silent on this, this would be the "at least fifteen per cent" allocated to county governments out of all the revenue collected by the national government under Article 203(2) and the half a per cent paid into the Equalisation Fund established by Article 204(1).

Consolidated Fund Services, CFS, does not exist, either in the Constitution or in the Public Finance Management Act (No. 18 of 2012), the principal statute on the management of the Consolidated Fund. It is an accounting term relied on by the National Treasury to make payments the payments required to be made as charges on the Consolidated Fund. In other words, it is a line item in the National Treasury's books of account. Consolidated Fund Services encompasses all the payments that are a charge on the Consolidated Fund, that must be paid and are ordinarily not subject to the appropriations processes of the National Assembly.

In short, the Constitution does not prescribe a minimum level of payments that must be made through Consolidated Fund Services. It simply prescribes what are charges on the Consolidated Fund.

Friday, February 17, 2017

The Big Switch-Off (Redux)

Article 31 of the Constitution states, "Every person has the right to privacy, which includes the right not to have (a) their person, home or property searched; (b) their possessions seized; (c) information relating to their family or private affairs unnecessarily required or revealed; or (d) the privacy of their communications infringed."

But Article 24(1) also states, "A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including (a) the nature of the right or fundamental freedom; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and (e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

The proposal by the Communications Authority––a proposal that seems to have been made to all telecommunications' services providers in Kenya since at least September 2016––that telecommunications' services providers shall allow a private contractor of the Communications Authority to install a "link at the data-centre or the mobile switching room" that shall "terminate close to the core network elements that shall integrate to the DMS solution", according to the Daily Nation, to "track countefeit phones" has met with suspicion that the purpose of the "link" is to spy on phone users by accessing their phone calls, text messages and other data without having to obtain a warrant from a court of law, an invasion of privacy that many will challenge.

Assuming that the alleged nefarious scheme by the Communications' Authority s true, can it actually do so? Article 31 can be limited if the limitation meets all the criteria set out in Article 24. Therefore, yes, the Communications Authority can, for lack of a better word, spy on you through your mobile phone.

Mr Wangusi, the chief executive officer of the Communications Authority, says that this "link" will be used to track counterfeit mobile phones. Few believe him. But if that were true, Mr Wangusi has not made any attempt to demonstrate that other less intrusive measures have failed. In 2012, the Communications' Authority's predecessor, the Communications Commission of Kenya, proposed to "switch off" millions of "fake" mobile phones that were in use in Kenya. Little, if anything, is known about the 2012 exercise, including whether or not it was successful and what the Communications Authority had done since then to prevent counterfeit mobile phones from being activated in Kenya.

In 2012, the big switch off revolved around the International Mobile Equipment Identity (IMEI) number, a fifteen-digit code, that identifies each mobile device that has been activated on any mobile network in the world. These IMEI numbers are entered into a global Equipment Identity Register (EIR) principally to help manufacturers track counterfeiters and sue them for intellectual property theft. The Communications Authority, hand in hand with telecommunications services providers, can still use IMEIs and the EIR to identify and track counterfeit phones. Why they need an advanced system with the potential of being used as a tool for violating Kenya's right to privacy remains unexplained.

The Communications Authority can limit Kenyans' right to privacy but before it does so, any Kenyan can challenge the Communications Authority's actions in the High Court. I don't believe Mr Wangusi and his other officers will be able to persuade a High Court judge that this "link" is "is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom" or that there isn't a "less restrictive means to achieve the purpose". I wonder if he ever will.

No heroes of conscience, only victims.

The Ministry of Health, the principal institution of the national government in the health sector, is responsible for national referral health facilities (such as the Kenyatta National Hospital and the Moi Teaching and Referral Hospital) and health policy while county governments are responsible for County health services, including, in particular (a) county health facilities and pharmacies; (b) ambulance services; (c) promotion of primary health care; (d) licensing and control of undertakings that sell food to the public; (e) veterinary services (excluding regulation of the profession); (f) cemeteries, funeral parlours and crematoria; and (g) refuse removal, refuse dumps and solid waste disposal. Those are the broad provisions of the Fourth Schedule to the Constitution on the distribution of functions between the national government and county governments.

The functions of the national government are restrictive while those of the county governments are not exhaustive. Neither of these facts is sufficient to resolve the question of who is ultimately responsible for the state of the health sector. In August 2013, the Transition Authority published in the Kenya Gazette its interpretation of "county health services". These included,
county health facilities including county health facilities including county and sub-county hospitals, rural health centres, dispensaries, rural health training and demonstration centres. Rehabilitation and maintenance of county health facilities including maintenance of vehicles, medical equipment and machinery. Inspection and licensing of medical premises including reporting;
and
promotion of primary health care including health education, health promotion. community health services, reproductive health, child health, tuberculosis, HIV, malaria, school health program, environmental health, maternal health care, immunization, disease surveillance, outreach services, referral, nutrition, occupational safety, food and water quality and safety, disease screening, hygiene and sanitation, disease prevention and control, ophthalmic services, clinical services, rehabilitation, mental health, laboratory services, oral health, disaster preparedness and disease outbreak services. Planning and monitoring, health information system (data collection, collation, analysis and reporting), supportive supervision, patient and health facility records and inventories.
It is its interpretation of promotion of primary healthcare that is interesting because it entails providing community health services, maternal health care, immunization, outreach services, referral, ophthalmic services, clinical services, rehabilitation, mental health, laboratory services, and oral health [services]. These are services that can only be provided by doctors. If these are services provided by the county government, then these doctors are employees of the county government, that is, county public officers. Their terms of service, whether they are members of a national union or not, are the responsibility of the respective county governments. Unless they are doctors employed in national referral health facilities or for the purposes of developing a health policy, the national government has nothing to do with their terms of service.

The Kenya Medical Practitioners', Pharmacists' and Dentists' Union attempted to prevent the devolution of health services to county governments in 2013. Their argument that devolution of health services would be prejudicial or public interest was rejected by a three-judge High Court bench of judges Weldon Korir, Mumbi Ngugi and George Odunga. The doctors' union was determined to prevent the devolution of health services so much so that while it was suing the Transition Authority to get it to reverse its decision to transfer health services to counties, it was also negotiating a comprehensive bargaining agreement with the national government.

Mutuma Mathiu reminds us of the doctors' resistance to devolution and a possible motivation for that resistance:
In the past, doctors would be posted to some far-flung place. Many would rarely leave the city but would continue earning a salary. They would visit their stations in the manner of consultants while in actual fact they were on the staff.
But you can’t do that if there is a governor and local officials watching over what you are doing. This is partly what the doctors are resisting, along with the difficulties of working for corrupt and inept county governments. Daily Nation, 17th February 2017
The union resisted the devolution of health from the beginning. Few of them wanted to have the county government as their employer; after all, in 2013, none of the county governments had covered itself in glory regarding priorities, such as the improvement of health services. Things have not changed four and a half years later. Going by the precedent set by the High Court in 2013, the devolution of health services will not be  reversed by the courts; that is a political decision and neither the national government nor county governments seem interested in such a reversal.

I am sorry, I don't think the doctors are the heroes they are painted to be nor the national government the monstrous villain everyone says it is. The national government is not responsible for the terms of service of the vast majority of doctors; that responsibility falls on county governments. Therefore, the negotiations must be between a representative of all county governments, a responsibility that has been undertaken by the Council of County Governors, and the doctors' union. The Ministry of Health will do the same with the health workers under its jurisdiction. The labour ministry can only help in mediation but with the establishment of county public service boards, the labour ministry has no role to play except in the establishment of labour standards, including labour standards in the health sector.

I fail to see how the national government could have "implemented the CBA" signed in December 2013. I fail to understand why the CBA was signed in the first place. But I can understand why it was not registered with the labour court: the court would have had to point out the anomaly of the national government, which was no longer responsible for county health services, entering into an agreement with doctors it no longer employed regarding terms of service that it had no authority to entertain at all. The only thing that the national government can do is come up with a health policy; its implementation, however, must be done jointly with other stakeholders, especially county governments and doctors.

In the heat and noise of the #CBA7 and #LipaKamaTender hashtag campaigns, this important point has been lost: the proper negotiating entities with the doctors are the county governments, through the Council of County Governors, not the Ministry of Health or the Ministry of Labour. That is the constitutional bargain that Kenyans made. The insidious attempts by both the Ministry of Health and the doctors' union to undermine the devolution of health services, and the gross incompetence of the county governments in policy and financial management, has led to the almost complete shutdown of all health services in Kenya. There are no heroes of conscience in this dispute, only victims.

The Hippocratic Oath (1964 version)

The Hippocratic Oath, as re-written in 1964 by Dr Louis Lasagna, Academic Dean of the School of Medicine at Tufts University, says,
I swear to fulfill, to the best of my ability and judgment, this covenant:
I will respect the hard-won scientific gains of those physicians in whose steps I walk, and gladly share such knowledge as is mine with those who are to follow.
I will apply, for the benefit of the sick, all measures [that] are required, avoiding those twin traps of overtreatment and therapeutic nihilism.
I will remember that there is art to medicine as well as science, and that warmth, sympathy, and understanding may outweigh the surgeon's knife or the chemist's drug.
I will not be ashamed to say "I know not," nor will I fail to call in my colleagues when the skills of another are needed for a patient's recovery.
I will respect the privacy of my patients, for their problems are not disclosed to me that the world may know. Most especially must I tread with care in matters of life and death. If it is given me to save a life, all thanks. But it may also be within my power to take a life; this awesome responsibility must be faced with great humbleness and awareness of my own frailty. Above all, I must not play at God.
I will remember that I do not treat a fever chart, a cancerous growth, but a sick human being, whose illness may affect the person's family and economic stability. My responsibility includes these related problems, if I am to care adequately for the sick.
I will prevent disease whenever I can, for prevention is preferable to cure.
I will remember that I remain a member of society, with special obligations to all my fellow human beings, those sound of mind and body as well as the infirm.
If I do not violate this oath, may I enjoy life and art, respected while I live and remembered with affection thereafter. May I always act so as to preserve the finest traditions of my calling and may I long experience the joy of healing those who seek my help.

Thursday, February 16, 2017

Could Miguna take it?

Make no mistake. Nairobi doesn’t belong to the rapacious cartels. Nairobi belongs to the 99% of voters who can hardly make ends meet. The power is in our numbers. Join our movement. Let us crush the cartels. We must transform Nairobi City County into a prosperous and glorious place to live, work and grow together. Viva!migunamiguna.com
Donald John Trump, the forty-fifth  president of the United States, and Barack Hussein Obama, Mr Trump's predecessor, have radically different perceptions of the United States. In Mr Trump's eyes, the United States has fallen on hard times, is the laughingstock of China, is constantly being undermined by its friends and allies, is facing cataclysms on its southern border that only a wall will fix. In other words, the United States is not great. Mr Trump vowed to Make [the United States] America Great Again and restore it to True Americans. Since his election he has set off to do exactly that.

Mr Miguna is Nairobi's Donald Trump. In his eyes, Nairobi is divided between the 1% made up of rapacious cartels who have not only robbed the peoples of Nairobi blind, they have inculcated a culture of looting, lying, thieving and incompetence that has denied Nairobi City County prosperity and glory, and the 99% [of voters] who can hardly make ends meet. Mr Miguna will lead Nairobi City County to prosperity and glory by crushing the cartels by implementing the promises he has made in his manifesto and policies he is loath to share lest his ideas be stolen by members of the cartels.

Stripping Mr Miguna's words of their hyperbole leaves one with the unvarnished reality of Nairobi's straitened times. Evans Kidero, Jonathan Mueke and the members of their county executive committee have singularly managed to make the former City Council of Nairobi look like the paragons of Six Sigma effectiveness. In the four years that Mr Kidero and Mr Mueke have been in charge, not only has Nairobi become filthier, it has become more chaotic, congested, loud and hostile.

If Messrs Kidero and Mueke were solely to blame, we would leave it at that but special mention must be made of Nairobi's county assembly, its senator, MPs and woman representative, whose antics have done little to compel the incompetent Kidero/Mueke team o do better. As the saying goes, sooner or later the chicken will come to roost. That day is fast approaching and Mr Miguna and a host of rivals are hoping to make Mr Kidero a one-term governor. No one will be sorry to see Mr Kidero go. In fact it is possible that many might wish to see more muscular outcomes for Mr Kidero including robust prosecution by the DPP for what they believe has been a government of the corrupt.

Mr Miguna is neither soft nor cuddly; he is one of the most abrasive politicians in Nairobi today. He faces off against the suave and urbane Peter Kenneth, the spectacularly colourful Mike Sonko, the celebrity businesswoman Esther Passaris and the combative woman of God, Margaret Wanjiru. Mr Miguna brings a razor-sharp intellect; perhaps Mr Kenneth is the only politician who can match wits with him.

Mr Sonko, Mr Kenneth and Ms Wanjiru have served as elected representatives; Mr Kenneth was even celebrated for his stewardship of the Gatanga Constituency CDF kitty. Mr Miguna has never held elected office before, two previous attempts never having seriously gotten off the drawing board. His only stint in the public service ended in bitterness, accusations and public displays of pique that left every party involved looking foolish and small.

In 2013, the city's politics were a tribal census with the "dominant" ethnic communities in Nairobi dominating the elections. Mr Miguna argues that in 2017, the people of Nairobi are ready to put tribal identities because they are fed up by how their city has been run. Mr Miguna may be onto something. However, Nairobi is also the principal operating base of all political parties in Kenya and national political party leaders command a sizeable share of the loyalty of the city's voters. For Mr Miguna to prevail in August, he must not only smash the seemingly white-knuckle grip that Mr Odinga or Mr Kenyatta seem to have on Nairobi's voters, he must also convince the voters that he has the ability to govern and govern well, regardless of his personality, uhmm, traits.

Wednesday, February 15, 2017

#FreeAtLast

The #CBA7 are free. Sort of. The Court of Appeal has ordered release of the leaders of the doctors' union pending the hearing of an appeal by the union against the decision of the employment court regarding the legitimacy of their strike. The politicians and their acolytes are going to have a field day with this new development. Propagandists are about to earn their shilling today.

If you really thought that the fate of the #CBA7 was not going to be "politicised", you are an idiot. It offered politicians an opportunity to paint each other in especially bad light, the Minority Coalition would say that the Majority Alliance is led by idiots while the Majority Alliance...I don't know what it thinks except it repeats "rule of law" over and over like an article of faith.

Now the Kenya Medical Doctors', Pharmacists' and Dentists' Union are players on the political field of combat. They will become cannon fodder for the insatiably egos of the political classes. They may win or they may lose; there are no guarantees when it comes to CBAs with the Government. But they will no longer be anonymous. Those cute days are long past.

Tuesday, February 14, 2017

Should the CBA7 go free?

On 13th February, 2017, seven Kenyan doctors who are officials of the medics’ union were jailed for failing to call off a two-month strike by doctors at public hospitals. This precipitated a debate on how a country could condemn its brightest minds to prison.
Even as the government insists that the doctor’s demands are irrational, several large-scale corruption scandals exposed recently which implicated the Principal Secretary of Health (one of the individuals negotiating with the doctors) have brought many Kenyans to question the Executive’s commitment to ending corruption.The State’s Contempt for Court orders: A review of the last 4 years, Demas Kiprono, Advocate
 Kenya is peculiar but not that peculiar.

What happened on the 13th February 2017 was not a miscarriage of justice. The seven doctors were not jailed because they are doctors; they were jailed because, as leaders of a trade union, they disobeyed the order of the Employment and Labour Relations Court to call off a strike being undertaken by members of their union. In order to facilitate the ending of the strike, the court twice suspended its sentence of one-month's imprisonment for a total of ten days in order to allow the trade union to negotiate a binding settlement with the Ministry of Health. They failed to do so.

Whether or not the Government, that is the national Executive, characterises the trade union's demand as rational or not has nothing to do with whether or not the Executive is riddled with graft and that the Principal Secretary has been implicated in a corruption scandal. If it had anything to do with the labour dispute, shouldn't the doctors' union have brought the matter up, declared that it would only negotiate with honest, God-fearing civil servants and asked for PS Muraguri's exclusion from the negotiating table? That is not what they did.

What they did was to prosecute a two-pronged strategy: keep the Ministry's mandarins at the negotiating table without conceding anything while at the same time conducting an inspired public relations campaign that would paint the doctors' union and its members as the saviours of the health sector. The union succeeded. #LipaKamaTender is the reason why the 2017 edition of the First Lady's Half Marathon was abandoned and it is why the Cabinet Secretary feels comfortable painting his Principal Secretary as the stumbling block to an amicable settlement of the labour dispute.

But despite everything they attempted, two facts are indisputable: the employment court ordered the union to call off its strike; the union disobeyed the orders of the court. Neither of those facts is in dispute. When the union disobeyed the court, it was convicted of contempt of court, not contempt of Government. The leaders of the union were sentenced to one month's imprisonment. I hope my learned colleague Mr Kiprono is not suggesting that so long as a conviction is made against Kenya's "brightest minds" it should be vacated and the scofflaws set at liberty. That would make a mockery of the rule of law both he and I have sworn to uphold without fear or favour.

The doctors' union, with the consent of its members, agreed to defend their actions in a court of law, thereby agreeing to abide by the decision of the court. The court ordered the union to end the strike. The union refused. The court charged the leaders of the union with contempt of court and convicted them. Now the sentence is being carried out. The doctors can't claim that they were not extended every courtesy by the court to end the strike. They can blame the Ministry for stonewalling and lying through its teeth. But they can't blame the court for doing what was expected under the law. If you are convicted of an offence you must face the music.

Clinton lost. The end.

Do you know who Bernie Sanders is? Probably, especially if you avidly followed US politics during the "primaries" to choose presidential candidates for the Democratic and Republican parties. Mr Sanders, together with Patrick Leahy, is a senator representing Vermont state. Before that, he served in the US House of Representatives and before that he was the mayor of the city of Burlington. 

Mr Sanders was, until he decided to challenge Hillary Clinton for the nomination of the Democratic Party, an independent, that is, he wasn't a registered member of the two main political parties of the US or any of the other half-dozen obscure political parties, such as the Green Party, on whose platform Dr Jill Stein campaigned for the presidency of the United States. Mr Sanders is credited with having cost Mrs Clinton the presidency by refusing to concede even after it became "mathematically impossible" for him to secure the Democratic Party's nomination. He is also accused of being a sore loser and of inspiring Bernie Bros to stay at home during the general election, thereby depressing the Democratic Party vote and gifting the odious Donald Trump victory over Mrs Clinton.

Mr Sanders' actions in 2015 and 2016 have left a bitter aftertaste in the mouths of Mrs Clinton's supporters, even here in Kenya, and they can't help but relitigate the US presidential election. I am not a fan of the forget-and-move-on chorus, but looking at how Mrs Clinton has comported herself since the election, perhaps her ardent fans need to take a leaf out of one of her books. Mr Sanders, true to type, goes back to being the politician he always has been: the excoriator of Wall Street and the usually ineffective voice of the residents of Main Street.

Mr Sanders has his niche; it is not presidential politics but financial regulation. Mrs Clinton had her niche: she was always running for president and had done so ever since she discovered political power as one-half of the Arkansas state house. She wasn't very good at running for president, though; she made too many unseemly compromises, shook hands with too many unseemly Wall Street types and was willing to overlook some of the worst habits of her lecherous husband in order to remain near the levers of power and use them to her own political ends. She was a flawed candidate who couldn't hack it against an even worse winner.

Mr Sanders will not seek the US presidency again; he'll be 79 when Mr Trump's first term ends. Mrs Clinton will not be seeking the US presidency again. She lost the nomination in 2008 to Mr Obama. She lost the race to Mr Trump eight years later. She's done. Mr Sanders, meanwhile, like Mr Leahy, Vermont's "senior" senator, can camp out in the US Senate until some young up-and-comer shoves him out.

Kenya's ardent Clintonistas need a new obsession. Given that #TukoPamoja, #NASA, #LipaKamaTender and any number of hashtags have animated them over the past three months, they need to get over their heartache at Mrs Clinton's loss, their rage at Mr Sanders' betrayal and their grief that Mrs Clinton has no political heirs now that Mrs Obama has no intention of dipping her toe in that particular cesspool. Mrs Clinton lost. The end. Deal with it!

Monday, February 13, 2017

The CBA treadmill

I don't know why you're surprised that officials of the Kenya Medical Practitioners and Dentists Union, who had had their sentence for contempt suspended twice by the Employment and Labour Relations Court, were jailed on the exasperated orders of the court. The moment that they lost the contempt proceedings, the unionists were on borrowed time and from all I have been able to gather of their comprehensive bargaining agreement with "the Government", they were never going to prevail in the courts of lawthough they more than held their own in the court of public opinion. #LipaKamaTender was an inspired hashtag and, ultimately, pointless in the dispute with "the Government."

"The Government" that signed the comprehensive bargaining agreement with the union was the first government organised in accordance with the provisions of the constitution promulgated in 2010. This presents complications of its own; save for "national referral health facilities" and "health policy", the national government may not have been the proper institution for the doctors to negotiate with and any negotiations that might have been commenced before the 5th March, 2013, would have been exercises in futility because it is county governments that are responsible for county health services and, even with the botched "devolution" of health services, the principal employer of doctors.

But even if the lawyers could get around the weaselly language in the Fourth Schedule to the Constitution, they would have to get around the weaselly language of politicians whose only goal, in Kenya as elsewhere, is to be re-elected and who have perfected the art of making and breaking CBAs with a casualness that would frustrate Faust's tormentor, the Devil himself. The seeds of their present losses can be traced to the failure to register the CBA in accordance with section 59(5) of the Labour Relations Act, 2007,
A collective agreement becomes enforceable and shall be implemented upon registration by the Industrial Court and shall be effective from the date agreed upon by the parties.
Politicians live for technicalities like these; it is like mother's milk to them. There isn't a politician alive who doesn't know that there is a limit to public resources; the Consolidated Fund is not a bottomless pit of money but a leaky basket beneath which lie many, many hyenas with designs on it, few of those designs being benign. The moment it became clear that in the chaos surrounding the "devolution" of healthcare had completely overwhelmed the union bosses such that they forgot to insist on the registration of the CBA, the union's goose was cooked. Shady? Definitely. Bad faith? Absolutely. Illegal? Well, it depends on whether or not "the Government" had the alleged billions it would take to implement the CBA, doesn't it?

Things have not gone according to plan for this government; the public debt, while "sustainable", foes not give the Government any wiggle-room to increase the size of its recurrent expenditure, of which remuneration swallow a colossally substantial sum. David Ndii, Jubilee's bete noir, calls what we are on right now the debt treadmill: we are borrowing to pay of debts. This debt treadmill prevents us from increasing the size of our recurrent expenditure without savage cuts in capital or development expenditure. As a result, this government has no good options. It has chosen the least painful: watakaa ngumu, come hell or high water. Sooner or later the doctors will blink. Now that union officials are being jailed for contempt, let us see if this government has called their bluff.

Friday, February 10, 2017

Nostalgia and heartache

Before John Njoroge Michuki got it into his head to demolish the Kenya Bus Service Company LimitedI mean years before he did that—it used to be known as the Kenya Bus Service Corporation. At least I think it was called the Kenya Bus Service Corporation. And I think it was wholly owned by the City Council of Nairobi. I was child back then and I knew it as KBS. It was a familiar institution. It was there when my parents emigrated to the City and it was there when I was born and it was there when I buggered off to Machakos (which did not have a bus service of any kind, the little horrible town) and it was there when I ran away from home to India.

We lived on the No. 58 route, though the No. 59 and No. 36 routes intersected with the No. 58 route right near our bus stage. My world, most of the time, revolved around the No. 58 route between the Buru Buru I roundabout, up Mumias South Road, right onto Rabai Road, ending at the ACK St Philips bus stage along Charles New Road. Total distance: 3 kilometres. It wasn't until my father bought me m first Casio "Quartz" digital watch that I noticed the predictable fifteen-minutes-apart schedule of the No. 58 bus, the twenty-minutes-apart schedule of the No. 36, and the thirty-minutes-apart schedule of the No. 59. Like clockwork. Every single day except Sunday.

They were based on Leyland chassis. I have no idea how many passengers they carried, but because passengers could ride he bus while standing, it wasn't really an important question that I needed to answer. KBS buses had two doors, front to enter and rear to exit. And they were slow. They plodded. It took half-an-hour to get to the Central Bus Station in town, which seems a bit of a miracle today when every motorist and their cat want to be first.

Fares were dynamic, with different rates for the rush hour and the off-peak period (0900 - 1500). The shorter the distance travelled, the higher the per-kilometre rate. But even at rush hour, the full fare from Buru to town didn't exceed five shillings, even after the mitumba madness of 1990/1991. KBS had depots everywhere for their buses: Central Bus Station in town, one in Eastleigh, one in Kawangware, one in Kangemi and one in Umoja II. Only Central Bus Station remains; the rest have been converted into "markets" and other forms of "real estate" development.

With Mr Michuki's transport reforms, the last nail was driven in the coffin of public transport sanity. His reforms came at the tail end of a long period of "privatisation". More and more "investors" were licensed to operate PSVs, though KBS retained its monopoly of the Central Bus Station, and the Ambassadeur and Kencom stages. The matatu operators ran their CBD operations from the streets to the east of Tom Mboya Street, especially "commercial", that zone between Archives, Odeon Cinema, Savani's Book Centre and Tea Room. Mr Michuki's "reforms" took away KBS's monopoly and allowed the Transport Licensing Board to issue matatu oaperators with licenses on a per-route basis. KBS briefly put up a fight with its super-popular Shuttle, but by the end of 2003, KBS was bankrupt and taken over by its managers, spawning the crappy KBS Management Company Limited, which is one among the four struggling big-fleet operators: Citi Hoppa, City Shuttle and Double M.

Everyone else, eventually, was corralled into Saccos or Sacco companies. The carefully-established KBS route-system was slowly bastardised. Bus stages were for the squares who didn't know Time is money; if you wanted to alight in the middle of Haile Selassie Avenue, no one would stop you, least of all the makanga, the bus conductor as re-imagined by Beelzebub himself: loud, unkempt, uncouth and totally focussed on separating you from your fare in the fastest, most aggressive way possible.

Back when JJ Kamotho was still Kanu Court Jester No. 1, he led Baba Moi to visit with a group of young, dreadlocked men, keen to re-establish their much-maligned "traditional" ways of worshipping Ngai. By the time Kimeendero was ordering more aggressive tactics against the Mungiki and their top leadership, the Mungiki was the de facto sole authority when it came to the "regulation" of the matatu sector, which now firmly counted the KBS Management Company Limited among its core members just as Citi Hoppa, City Shuttle and Double M undoubtedly were. There being no difference in operating philosophy between matatus and proper bus companies,  the rules have been simplified mightily: you want to operate on a certain route, you pay; you want to operate a particular make or model of bus/matatu, you pay; you want to operate from certain termini or through some bus stages, you pay; you wan to hire a certain calibre of crew, you pay; you want to avoid hiring a certain calibre of crew, you pay; you want to play music on your bus/matatu, you pay. And the Mungiki collects, come rain or shine, hell or high water. And if you don't pay, well, use your imagination.

Commuting is a nightmare. Commuting by bus is the equivalent of playing Russian Roulette in the middle of Uhuru Highway at the peak of rush hour with a loaded AK-47. Save for the commuters who have gun-toting driver-cum-bodyguards and outriders to clear the path for their motorcades, motorists and those who ride the public transport system have little to look forward to in the next five or even ten years. Those of certain vintage remember the stodginess and boredom of the KBS with nostalgia and a little heartache.

Consumerisation was a mistake

With the advent of the consumerisation of public servicesthe treatment of citizens as consumers by the Governmentcame the establishment of customer-care desks and service charters. These had one profound effect: the development of a new language that erased the notion that citizens have rights as opposed to contractual expectations. Rights are either protected or violated; when they are violated, sometimes the only way to mitigate those violations is by jailing someone. However, all contractual breaches can be mitigated by cash awards.

Consumerising the public services has led to the idea that only those consumer-citizens who meet certain contractual thresholds deserve certain public services or enjoy certain rights or privileges. For example, in the recent past no less a person than the President and CEO of Kenya Government Ltd has suggested that if one fails to register as a voter and fails to vote at an election, one isn't entitle to "question" the Government about anything. Some who have challenged the President's declaration have offered an alternative: if one pays taxes, one has every right to "question" the Government about its acts. Counter-factually, going by the latter argument, if one is not a taxpayer, one has no right to question the Government about anything.

The problem with these propositions is that the Government's operations increasingly begin to reflect the ill-thought provision in the Bill of Rights that states,
(5) In applying any right under Article 43, if the State claims that it does not have the resources to implement the right, a court, tribunal or other authority shall be guided by the following principles––
(a) it is the responsibility of the State to show that the resources are not available...
(Article 20)
When a customer goes to a shop to purchase something, say bread, he has absolutely no right to the bread being offered for sale by the proprietor. He is one among other consumers and if he happens to go by when the proprietor is out of bread, whether or not he had the cash to pay for the bread, he cannot argue that his right to bread has been violated by the proprietor. The rights in Article 43 are,
(a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care;
(b) to accessible and adequate housing, and to reasonable standards of sanitation;
(c) to be free from hunger, and to have adequate food of acceptable quality;
(d) to clean and safe water in adequate quantities;
(e) to social security; and
(f) to education.
As a consumer-citizen, your rights will be protected so long as Government Ltd has the resources to implement the right, and if Government Ltd can demonstrate to, a court for example, that it has inadequate resources to implement the right, you, the consumer-citizen, will be left to the mercy of the free market and the profit motive. Today is the sixty-eighth day that the public health services have been crippled by a doctors' strike. The Government has argued that it lacks the resources to meet the demands of the striking doctors and, by extension, it lacks the resources to implement the citizens' right to the highest attainable standard of health, which includes the right to health care services.

I believe that we have a fundamentally flawed understanding of what a Government is, especially a Kenyan Government, and what it can and cannot do. The Government is not a commercial entity even though it has a corporate identity, that is, it is a legal person capable of suing and being sued, buying and holding property, entering into contracts, and doing all those things that a corporate entity is capable of doing. Because it is not a commercial entity, it is not and it should not be guided by the profit margin.

The Government has a mandate to levy and collect all sorts of taxes and an obligation to spend that revenue in the most prudent manner possible. But it shouldn't tax-and-spend with the citizens in mind as consumers of services,  but as people who have rights guaranteed by the Constitution and protected by the State through its institutions, including the Government. That, at least, is the theory.

In 2010, in the run-up to the constitutional referendum, many were distracted by side-shows, like Kadhis' courts, abortion, the right to strike by members of the disciplined services, and presidential versus parliamentary government systems. As a result, the relationship between the Government and the people, was defined in especially perverse ways, one of which is an obligation on all adult Kenyans to pay taxes but to retain or have limited rights in how those taxes would be spent. Hence, the current impasse: doctors have demanded a comprehensive policy on health services which would require substantial sums to be spent in implementing but the Government, seen as a caricature of a for-profit organisation, argues that it lacks the resources to meet the doctors' demands.

The consumerisation of public services is Mwai Kibaki's greatest legacy as President. If his government hadn't persuaded even human rights' organisations of this subtle change, it is possible that the Bill of Rights would not have taken on the burden of enshrining rights that could not possibly be protected (or implemented) by a Government that was recovering from forty years of decrepit political thinking, whose revenue base was still too narrow (because of its focus on formal employment and manufacturing) and which required greater political engineering to encourage greater civic participation by citizens. We are all consumers now; shortages are the norm in inefficient and ineffective markets.

Wednesday, February 08, 2017

Let prisoners vote

Are the incarcerated human? On their incarceration, what rights, if any, do they give up? In light of the Independent Electoral and Boundaries Commission's recent decision, should the incarcerated vote at an election or a referendum, and if they should in the former, whom should they be able to vote for? (A corollary, naturally, arises: should an incarcerated person be able to stand for an election if he or she is serving a prison sentence that is shorter than six months?)

Many will accuse me of naiveté, but the incarcerated, including those who have been convicted of offences, do not lose their humanity when they enter prisons. Many have been convicted of heinous crimes and their sentences might mean years behind bars, but to deny their humanity is the first step to treating them inhumanely and, thereby, dehumanising ourselves in the bargain. They remain human and which is why, except for the exceptions to the rule, modern prison techniques are designed to rehabilitate offenders before setting them at liberty at the end of their sentences.

For sure, those convicted of offences lose some of their rights and fundamental freedoms. For example, those whose sentences are imprisonment for a term of years or for the rest of their life, lose their freedom of movement and residence. While they are in prison, they also lose their freedom of expression, association and the right to found a family. However, by my interpretation of both Articles 38 and 83, I find no prima facie grounds for denying prisoners the right to exercise their franchise by voting at elections or referenda.

Article 38(3) states,
Every adult citizen has the right, without unreasonable restrictions—
(a) to be registered as a voter;
(b) to vote by secret ballot in any election or referendum; and
(c) to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.
Article 83(1) states,
A person qualifies for registration as a voter at elections or referenda if the person—
(a) is an adult citizen;
(b) is not declared to be of unsound mind; and
(c) has not been convicted of an election offence during the preceding five years.
Article 83(3) states,
Administrative arrangements for the registration of voters and the conduct of elections shall be designed to facilitate, and shall not deny, an eligible citizen the right to vote or stand for election.
If we begin by asking whether or not prisoners are eligible to be registered as voters, we find that the answer is in the affirmative. The relevant qualification for registration in Article 83(1) only excludes persons who have been convicted of election offences in the preceding five years. By my estimation, even the most odious offenders, so long as they have not committed election offences, are eligible to be registered as voters and the onus is on the Commission to make administrative arrangements to facilitate their registration as voters or, horror of horrors, to stand for election if they satisfy the requirements of Articles 99 or 193.

Article 38(3) only provides for "reasonable" restrictions when it comes to the question of whether a person can register as a voter, vote at an election or referendum, or stand for election as a candidate. The reasonableness of the restriction shall be guided by the provisions on the limitation of rights or fundamental freedoms found in Article 24. Clause (1) qualifies limitations by stating that they should be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

It is Fyodor Dostoyevsky who said we can judge the level of civilisation in a society by the way it treats its prisoners and if Kenya wishes to consider itself as a civilised nation, how it treats its prisoners will also be used as a measure of its civilisation. I do not argue that society shouldn't be protected from violent or sexual offenders or that the penalty imposed on criminal offenders undergoing prison sentences should be lessened (though there is a point to be made about the new penalties that Parliament is creating every year). But outside any demonstration that allowing prisoners to vote will harm society, no argument has been advanced that justifies denying prisoners their franchise. If we wish to rehabilitate prisoners before releasing them into society, it is fit and proper that we treat them as part of society. Allowing them to vote is one way of reminding them that after they have paid their debt to society, society, in turn, wants them to assimilate fully. For my money, let them vote.

Tuesday, February 07, 2017

No saviours needed

If your main argument as a prospective candidate at the general elections on Tuesday, 8th August, 2017, is that you are the only leader who can fix our problems, then you are a serpent, the serpent referred to in the book of Genesis at chapter 3: the craftiest of all the wild animals. You are a disciple of the father of lies as described in the Gospel according to John,
Ye are of your father the devil, and the lusts of your father ye will do. He was a murderer from the beginning, and abode not in the truth, because there is no truth in him. When he speaketh a lie, he speaketh of his own: for he is a liar, and the father of it.—John 8:44
If you repeat the statement that you are the only one who can save our body politic à la Donald Trump and his #MAGA wizardry, you deserve a liar's life and a serpent's death. You are an unworthy candidate. You are everything that is wrong with this country. You are a waste of bio-matter.

I don't care that it is possible that you can solve all our problems; we don't need problem-solvers. We need leaders to light the way. Just because you think my three-year old sprog needs a tablet computer doesn't mean that it is your responsibility to get her one. That's my job. Your job is to build hospitals that are staffed with the best doctors who have access to the best equipment and who can prescribe the right medicines to keep my child from being consumed by consumption, diphtheria, pertussis or tinea corporis. Should I buy my daughter a tablet computer to aid in her learning and education, I don't want her lessons to be conducted while she sits on an earthen floor because your second mistress's first cousin took our fifty billion to supply school furniture and blew it all on a big-titted Ukrainian dominatrix named Olga with a suspicious Adam's-apple-like bulge in her throatand pants.

We are not looking for saviours. Fifty years of saviours have left us with a healthcare system that has become so decrepit that even obvious swindles with the lives of our unborn are undertaken with our tacit, passive acquiescence. Five billion shillings might be small potatoes for someone who is rumoured to be extremely wealthythe rumours being assiduously peddled by youbut when five billion shillings is rumoured to have evaporated without so much as a bed-pan to show for the magic trick, we definitely don't need a saviour, we need someone who will lead the forces of law and order into those dark corners that we have refused to enter. These are the corners where those that worship at the altar of the immiseration of the peoplecongregate . No, we are not looking for saviours.

We are not demanding that you become the Lincolnian truth-teller we all wish we were; we are only asking that you keep things in perspective. After all, after fifty five years of mediocrity, sophistry and cant, including a decade of looting the likes of which might have shocked the 1990s' era ex-Soviet oligarchs, we know that a Shinkansen-style network is still at least a decade away, vertically-integrated corporate Leviathans such as GE are still unfathomable among the small-minded, little-ambition pygmies who style themselves as "corporate Kenya" and many, many "elite" Kenyans will continue to .venerate chinless wonders such as the House of Windsor and the Sodomites who go dune-bashing.

What we need are leaders who can cut through the procurement BS that is designed to keep us focussed on small-potato shit. Which means someone who can get the vastness of the bureaucracy known as the public service humming in service to the people. Someone who can focus the "national security organs" long enough from collecting "tolls" or selling charcoal to ensure the safety of every Kenyan as he or she goes about their business. Someone who isn't afraid to tell his or her friends to get stuffed whenever the quo is demanded for the quid given. If you are looking for friends after being seated in that high chair, you're an idiot. We don't need idiots.

That's the long and short of it: if you have a savior complex, please, leave us be. If you are an idiot, please stay at home; your thinking privileges are suspended till Wednesday, 9th August, 2017.

Sooner or later, they will come for us

Upon receipt of the designated analyst’s certificates and the samples analysed in accordance with the foregoing subsections the authorized officers shall, where the drug is found to be a narcotic drug or psychotropic substance within the meaning of this Act, arrange with a magistrate for the immediate destruction by such means as shall be deemed to be appropriate of the whole amount seized (less the sample or samples taken as evidence at any subsequent trial or any contemplated trial particularly where the accused person’s identity is not yet known or the accused person is outside the jurisdiction of Kenya at the time of taking such samples).—section 74A(3), Narcotic Drugs and Psychotropic Substances (Control) Act, 1994
Where a person is convicted of an offence under this Act and any narcotic drug or psychotropic substance, motor vehicle, aircraft, ship, carriage or other conveyance or any other article or thing, liable to forfeiture to the Government under this Act in respect of that offence has been seized under this Act, the court convicting him may, in addition to any other penalty imposed on him, order that the narcotic drug, psychotropic substance, motor vehicle, aircraft, ship, carriage or other conveyance or other article or thing be condemned and forfeited to the Government.—section 78, Narcotic Drugs and Psychotropic Substances (Control) Act, 1994
The above are two provisions of the Narcotic Drugs and Psychotropic Substances (Control) Act, 1994, dealing with the disposal of drugs that have been seized by the Government and the vehicles in which the drugs were found. In 2014 and 2015, the Government destroyed ships in which drugs had been seized. According to the Daily Nation of the 29th August 2014,  
The MV Al Noor was destroyed 33km from the Mombasa Port and sunk to a depth of 329 metres with 370.8kg of heroin. The initial cargo was 373.8kg, but three kilos were taken to the government chemist for further analysis.
Also, according to the Daily Nation of the 15th August, 2015,
[The] Kenya Defence Forces have blown up a yacht that was found trying to sneak in 7.6 kilogrammes of heroin worth Sh22 million off the Kenyan coast.
In the first case, the destruction of the MV Al Noor, "President Uhuru Kenyatta supervised the blowing up of [a] ship" while in the second case, "[the] Interior Cabinet Secretary Joseph Nkaissery, Chief of Defence Forces General Samson Mwathethe, Inspector-General of Police Joseph Boinnet and Kenya Navy Commander Major-General Levi Mghalu witnessed the destruction." In both cases, the prosecution of the suspected drugs traffickers was yet to me completed.

Few of us have any sympathy with those who seek to profit from the utter ruin and destruction caused by narcotics, including the traffickers and distributors of narcotics. If we had the choice, we would blow up their ships with the traffickers on board. We recoil in horror at the images of the shattered souls of drugs users that we occasionally get to see on TV or on the streets, pathetic in their brokenness, devoid of the spark that even dreary lives cannot snuff out unless all hope is gone. We hate drugs. We hate drugs traffickers. Because of our hatred of both, we are willing to turn a blind eye when the law is bent "slightly" in the Government's campaign against drugs traffickers.

What began as an extreme solution to an extreme problem (the destruction of private property, i.e. the blowing up of ships) is now morphing into a campaign of the violation of the rights and fundamental freedoms of Kenyan citizens as demonstrated by the rendition of the Akasha brothers to the United States by agents of the US Drug Enforcement Administration. According to the Business Daily, the brothers, suspected of being drugs traffickers, had been "fighting their extradition to the USA for years".

Few doubt that the brothers were the innocents that their lawyer and mother tried to portray them as; they were, after all, the sons of the murdered drugs trafficking maestro, Ibrahim Akasha, and had been his loyal assistants in the trade. Regardless of what our certainties are about their guilt or innocence, the Government of Kenya had not secured any convictions against the brothers and was yet to persuade a magistrate to authorise their extradition to the USA. Thus, the admission by the Inspector-General of Police that it was the National Police Service that arrested the brothers and, by implication, it is the National Police Service that handed the brothers over to US authorities for extradition outside Kenya.

The most succinct definition of the "rule of law" is the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws. The destruction of the drugs-trafficking ships before their owners were convicted of drugs trafficking was an arbitrary exercise of power. The extradition of the Akasha brothers was an arbitrary exercise of power. That this power was exercised against execrable human beings is neither here nor there: it violated the national values and principles of governance enshrined in article 10 and violated the rights and fundamental freedoms of the suspects.

Almost always the Government runs out of bad people to target as enemies of the people and starts to focus its attention on the innocent. For now, our interests and those of the Government are aligned in the campaign against drugs, drugs trafficking and drugs use. At some point, our interests will diverge and we will become the targets of the Government, whether we are innocent or not.