Kenya: Killing Corruption Monster

ICC Confirmation Cases: Rumours and Perceptions but Little Evidence

2011-11-08T16:07:00.000+01:00

I followed the two Kenya ICC confirmation cases at The Hague closely, and as the curtains drew at the close of the hearings and without the benefit of the confidential sessions of the Court, my final characterization of the prosecution case is Rumours and Perceptions but Little Evidence. This may sound harsh to the prosecution case and victims but bear with me as I demonstrate my reasoning.

Perhaps one aspect which was not clearly exposed by the defence in both cases is that Kenya is a rumour mongering and perceptions’ society. The society thrives on rumours and perceptions about rivals and opponents be they political, economic or ethnic. The problem manifests itself prominently on the political sphere. Having experienced brutal and violent colonial rule followed with dictatorship after independence, Kenyans are highly suspicious about government and official explanation of facts. Even without evidence, the public is inclined to believe unsubstantiated contrary allegations. The situation becomes dangerously contagious when institutions such as opposition parties, media, civil society and religious bodies uncritically repeat and reinforce the allegations. At the same time, personal and mass communication technologies aid the swift diffusion of the rumours. The rumours and perceptions created take a life of their own and become the unofficial truth.

The picture becomes complex because the avenues to access public information freely without being confronted by the "infamous" Secrecy Act are limited. The persons who try to explain the official position are the same people the public does not trust: public officers, police, and politicians. For example, few seem to believe what the spokesperson of the government Dr Alfred Mutua says. However, when an opposition political leader, civil society organisations, media, or other non-government institutions make unsubstantiated claims, people tend to believe them and not Mutua.

During the pre- and post election many rumours and perceptions were manufactured, traded and spread without caring about their veracity. The most potent were that elections were to be rigged, the incumbent cannot win the election without rigging, it is 1 tribe against 41, the electoral commission was doctoring the presidential results, Ugandan soldiers were shooting and killing Kenyans in the Western province and Nyanza alongside Kenya police officers, the administration police force was being used to rig the elections in favour of Kibaki, the State House was used by Mungiki for meeting to plan retaliation, the police was partial and allowed mungiki to kill and displace ODM supporters in Naivasha and Nakuru, the judiciary cannot be trusted to be an impartial umpire in an election dispute, Mungiki were supplied with police uniform, guns and transported in military trucks to Naivasha and Nakuru, etc, etc.

Unfortunately all these strains of rumours and allegations found their way into the ICC in form of prosecution evidence . The prosecution did not attempt to verify trueness of these rumours and perceptions. For instance no statement was solicited from the suspects and no exculpatory evidence was collected and presented by the prosecution even where would be readily available. It was quite easy for the defence to punch holes in the prosecution evidence by carrying out independent investigations and presenting the exculpatory evidence to the court. This was the most embarrassing aspect of the prosecution case because they hardly countered defence assertion of lack of verification.

With the scarcity of evidence from the prosecution, the Court has no choice but to critically look at the evidence presented by the defence vis a vis the allegations by the prosecution. Fortunately, the government of Kenya, more so in the second case involving Muthaura, Kenyatta and Ali has pealed the veil of secrecy and tried to offer an insight of how the government operates as opposed to the theories offered by the prosecution.

The confirmation judges will choose either to believe the prosecution claims that they have better evidence than what they have not disclosed at this stage or be persuaded by the submissions of the defence teams that the prosecution have no substantial evidence as they did not carry out independent investigation in the matter apart from relying on rumours and perceptions as narrated by anonymous witnesses and gathered from secondary sources. It might be rather difficult this time round for the Judges to acquiescence to the prosecution evidence as presented in order to confirm the charges.

Whatever decision the Court arrives at, the suspects and victims and the Kenya society have had their day in court. Impunity has been exposed and the failure of the government to investigate and prosecute clearly manifested. But the worst would be the exposition of lack of due diligence in the prosecution investigations, if the charges are not confirmed.

Kenya Celebrates Second Mashujaa Day!

2011-10-20T11:45:00.001+02:00

This year’s Mashujaa Day Celebrations started with the unveiling of a statue commemorating and honoring Tom Mboya. It took 42 years for Kenya to honor and celebrate their slain son as a hero. Mboya was felled by an assassin’s bullet in the streets of Nairobi as he came out of a chemist shop in 1969. He was killed when his star was rapidly rising in the political arena. He was tipped to be the likely successor to the first President Jomo Kenyatta.

Mboya's becomes the second of Kenyan Heros Statues, to immortalize the streets of Nairobi. The first was that of the Mau Mau hero Dedan Kimathi. As Kenyans celebrate this day today, they will remember tens of heroes and heroines whose heroic deeds have not been immortalized yet. Quite fresh in memory will be Professor Wangari Maathai who passed on last month.

This day, however, is not only dedicated to the known heroes and heroines. It is also a day to honor the many ordinary and unsung heroes and heroines of our country who dedicate their lives to the service for their fellow Kenyans. One such heroine is Ms Ann Mwangi, featured in today's Daily Nation, who rescued a baby girl that had been abandoned in a dumpsite and has given her a new lease of life and motherly love. Mwangi runs her own Children’s home that now cares for 17 children.

Also today, we should especially remember the men and women of our military who are engaged in the service of protecting our borders against terrorist acts by the al Shabaab. The success of their mission depends on our unequivocal support at this critical moment. Before sending the military to fight the al Shabaab terrorist group, Kenyan borders and sovereignty was violated time and again by insurgent groups from neighboring countries. This action, regrettable as it is, should be a reminder to our neighbors that peace demands dual respect of territorial integrity of your neighboring countries. This is not a war against the Somalia people who cherishes peace and have been supported by Kenyans for many years as they fled their country but it is against the evil groups that have made their country ungovernable.

Wangari Maathai - Your Legacy Lives On!

2011-10-04T10:45:00.001+02:00

Conglatulating Wangari during award of Sophie Price Oslo Norway

Professor Wangari Maathai though gone she lived a life full of achievements and controversy and will be remember for decades to come. She dominated the Kenyan political arena like no other woman has ever done. She also scored many firsts in her life: The first woman to attain a Doctorate degree in Kenya if not East Africa; The first Woman with the title Professor in Kenya; The first woman to be awarded the Nobel Peace Price in Africa; only to mention the most prominent achievements.

In controversy she was as elegant as in her achievements. She shook the political scene when she opposed the building of the tallest building in Nairobi Uhuru Park by the KANU government of Former President Moi. No amount of insults and harassment by the government could deter her. Through her campaigns, she drew massive support locally and internationally that finally compelled the government to relent and abandon the project.

Celebrating Sophie Price Award Oslo Noway

Wangari Maathai did not shy from controversy especially when she believed in the goodness of the cause. In 1992, she joined and supported the Mothers of political prisoners who had camped in the Uhuru Park Freedom Corner when other prominent women in Kenya could not dare. For this and her numerous political, social and economic struggles makes her the Heroine of the Second Liberation in Kenya.

Wangari Maathai, however, will be remembered most for her love and struggle for the environment. Her Green Belt Movement and tree planting campaign will live forever.

The greatest tribute we can bestow Wangari Maathai is whenever you see a tree, remember Wangari. At the same time, whenever we plant a tree in her honor we will perpetuate her legacy.

ICC: Sober, Humane, Stern and Professional

2011-09-10T23:20:00.000+02:00

The epitome of the ICC Kenya Pre-Trial cases at The Hague is the presiding Judge Ekaterina Trendafilova or simply “Madam President”. She cut a simple, smiling and polite demeanor which was supplemented with an incisive and strict manner in conduct of business in the Court. Everybody in the court was acknowledged and made to feel comfortable but readily made aware of the serious business before them. From day one of the confirmation of charges hearing in Case No. 1, involving William Ruto, Henry Kosegy and Joshua Sang, the Prosecutor, Defence Counsels and Representative of Victims were reminded time was of essence. Madam President instilled in them that sense in confining their submissions to the issues of the case and being precise in order to save time. Hence, a case that was allocated 15 days was over within 8 days.

It was noteworthy, that there was no room for drama and waste of time in the court, the Kenyan style. The usual ‘defence – prosecution’ drama was missing and when it attempted to creep in, the judges were fast to put a halt to it. Perhaps, this was the biggest lesson for the Kenyan public, judges and legal fraternity glued in front of their TV sets for the duration of the trial. Trial is not a drama and circus that should devour time without end. It is a business that should be finished in the shortest time possible without compromising the integrity of the trial and justice. After all, justice delayed is justice denied.

The other lesson is that you can be strict and humane without the need for threats. The presiding judge was the hallmark of professionalism. Where it was necessary to straighten up a matter, like when some of the suspects and their counsels were amused by witness testimony, she was polite but stern. Witnesses were treated by the court with a lot of understanding and respect. At the same time, the court did not hesitate to remind them why they were there especially when they tried to introduce extraneous matters in their testimony.

Whatever the outcome of this case and the next one, Kenyans have had a taste of international justice process and it is quite different from the national one. The court can be humane and professional at the same time. In addition, impunity cannot enjoy protection any more. In future, the 'lords of impunity' will pause to think before engaging in acts that might result into international crimes. As we noted in an earlier post, whether the charges are confirmed or not, the victims and the people of Kenya are the winners.

Burden of Compensating Retired Public Officials: Can the Country Afford?

2011-08-31T14:21:00.000+02:00

The list of retired or redundant public officials claiming compensation from the public purse grows by the day. The high profile of these officials led by the former President Daniel arap Moi, Vice President Moody Awour includes judges who opted to retired with full pension after the 2003 judicial radical surgery, former Members of Parliament, and former Kenya Anti-corruption Commission Aroan Ringera and other commissioners. Within the new constitutional dispensation, many judges will be retired, the current KACC director and commissioners have been shown the door, many MPs will lose their seats in the coming election, not to mention the President will retire, and who knows the Prime Minister and the Vice President may too retire or might not be elected back to public office. Then there are judicial officials and judges due to be retired according to the current constitution vetting requirement. The list goes on especially when we include lower profile officials like permanent secretaries. Can the country really afford to foot the monetary compensation bills for all these officers?

If the current trend continues, the country will drown under the bills of compensation. It is, therefore, important to rethink and restate the essence of public service. Does public service entitle the holder of an office unmitigated pecuniary advantage? Can the public afford to pay exaggerated compensation to these officers as the private sector does? Sometimes the money is being paid for services not rendered as in the case of compensating one for the remaining term of contract. Should officers who leave office and subsequently find new employment or are self-employed continue to draw benefits associated with their former employment? Isn't it a case of double payment to compensate such officers? I raise these issues because it is important to have debate on the matter. Just think about the current issue of compensating the MPs so that they can pay taxes due according to the law. Can the country afford this waste of public resources?

In Norway, the practice is that officers who leave their office because of retirement, change of law or government, do not get unmitigated compensation. Those who retire are entitled to retirement benefits just like any other worker during their retirement. The retirement benefits are calculated not according to your office but the number of years you served and the points you accumulated during that period. You do not get anything beyond what you have not earned for your retirement. If you retire and then get a new job elsewhere, you cannot continue to draw your retirement benefits at the same time as you get a salary from your new job.

Where public officials leave office due to change of law or government, such as cabinet ministers or MPs due to new election, they do not get exorbitant compensation. The practice is that they continue to draw their salaries for a limited time period or until they find new employment whichever comes first.

In 2010, the National Authority for Investigation and Prosecution of Economic and Environmental Crime (Økomrim) prosecuted two former MPs, Conservative (H) MP Anders Talleraas and ex Centre Party (Sp) MP Magnus Stangeland for illegally drawing a total of over three million kroner in pensions, because they had well-paid jobs at the same time. It also claimed the two failed to give Parliament’s Pensions Board (Pensjonsstyret) proper information about their incomes, which would have meant losing their right to receive a so-called self-awarded “golden pension”. Gro Harlem Brundtland, a former Prime Minister, was herself part of a group of six who received a higher pension than they were entitled to at the time, however, she paid back what she had received voluntarily several years before the case exploded in the media in 2008. She later testified in the case involving the two. They were found guilty and received custodial sentences of 6 months and 60 days, respectively.

The former Prime Minister was also involved in another controversy after receiving an operation for cancer in 2002 at Ullevål University Hospital. In 2008, it became known that during 2007 she had received two treatments at Ullevål, paid for by Norwegian public expenditures. She had previously notified the Norwegian authorities that she had changed residence to France, and as such she was no longer entitled to benefits of Norwegian social security. Following intense media attention surrounding the matter, Brundtland decided to change residence once more, back to Norway, and she also announced that she would be paying for the treatments herself.

Isn’t it a high time that the public were informed the true figures involved in these compensation schemes? The Treasury through the Minister of Finance should give an official statement to parliament on the matter. The media should too carry out its own investigative research on the matter for public information.

See related view:

Compensation: Since when didpublic office become property of incumbents?

Kenyans for Kenya: Recapturing the Spirit of Harambee!

2011-08-21T17:17:00.000+02:00

The initiative “Kenyans for Kenya” is an effort by ordinary Kenyans and business corporations to aid Kenyans suffering from hunger and malnutrition in Turkana and North Eastern parts of the country. It is based on a simple concept: “For as little as Ksh 10 you can save a hungry child from death. Together, we can save many lives. Take action today.” It urges Kenyans to - Pick up your phone and send your donation to M-PESA PayBill 111111 or KCB account No. 1133333338.

Already, the initiative has received over Ksh 650 million in cash, kind and pledges. The target,which originally was Ksh 500 million was extended to Ksh 1 billion. The initiative has been hailed as the most successful Kenyan humanitarian movement by Kenyans for helping fellow Kenyans in need. And, indeed it is. Since independence Kenyans have never shown so much generosity. Nevertheless, the spirit of giving and being my brother’s keeper is not new to Kenyans. The free “Harambee Spirit” emerged immediately after independence and was based on the same simple concept of communities joining hands to solve their local individual and common problems: such as providing a shelter for a needy neighbor, education for needy neighbor’s child, to providing education and health to communities through Harambee schools and Harambee dispensaries and health care centres. The spirit extended to other aspects of daily lives of the people through Harambee projects addressing different problems such as food, water, roads, land purchases and infrastructure.

From its inception, Harambee was free and voluntary. Such was the beauty of the Harambee Spirit before it was high jacked and made compulsory by the political class in the 80s and 90s. The political class, which was now competing against each other, measured ones generosity by how much you coughed out during Harambee fund raising rallies. This completely alienated common Kenyans from the Harambee as they felt intimidated by the volumes of cash contributed by the politicians. To involve the public, the administrative authorities – chiefs, district officers (Dos), district commissioners (DCs), provincial officers (PCs), heads of departments and even Permanent Secretaries – compulsorily collected money from government employees and members of public who sort services from these officers. The free and voluntary spirit of Harambee was hence dangerously violated.

In my opinion, the novelty of the initiative “Kenyans for Kenya” is the recapturing of the Free and Voluntary Spirit of Harambee and restoring it back to its owners – the public. The technological solution of Mpesa is Godsend as it has enabled Kenyans to contribute freely and voluntarily the amount they have and wish to give. Indigenous corporations such as Safaricom, KCB, Kenya Airways, Equity bank, media houses, etc and humanitarian organizations such as Red Cross need our support as they are true partners for our social and economic development. I don’t mean by this to discriminate against foreign corporations that too play an important role in our social and economic development but I am only re-emphasizing the saying that “charity begins at home”. By taking charge of our affairs, foreigners can only join us to help us achieve our goals at our own terms and they will not set the agenda for us.

Together we can change the face of Kenya from one of poverty to one of prosperity. Take Action Now and donate to M-PESA PayBill 111111 or KCB account No. 1133333338.

Scenes of Hunger, Scenes of Plenty! - What Solution?

2011-08-02T17:07:00.000+02:00

Extreme Hunger in Turkana

What a contrast? While some parts of Kenya, particularly Turkana and Northern Eastern province, people are dying of hunger, in some areas in the country farmers do not know what to do with bumper harvest that is rotting in the farms and fed to livestock. Why should a Kenyan die of hunger while food is in plenty in other parts of the country? Well, the weather cannot be blamed this time round. Distribution logistics seems to be the culprit. The current hunger problem could easily be solved with the movement of food from areas with plenty to those that are in need. However, the big question is how to achieve that? In a normal situation, the market should be able to facilitate the movement of food to areas with high demand. However, from two perspectives - the Market and Humanitarian perspectives - this is not happening seen.

Rotting Cabbages and Potatoes in Central Kenya

The market operates on demand and supply principles. In the areas with high supply, the demand is low. That is why the food is left to rot or is given to overfed livestock. On the other hand, in the areas with high demand, the supply is lacking. That is why people are dying every day. From an economic and market perspective this is not a problem because the food should be able to flow from the areas of high supply to the areas of high demand. So what is the missing link?

In my opinion, the missing link is what I call lack of "distribution stimuli". A stimulus is something that rouses or accelerates action, feeling, or thought. It’s also something that provokes response. For the market to respond, hunger and death is not enough. The market is roused by the opportunity for monetary and economic gains. This is absent in a situation where the people dying of hunger lack purchasing power. Hence, from an economic and market perspective the problem of distribution is basically the lack of purchasing power. Of course, other factors such as insecurity and lack of infrastructure may play a role in hindering distribution but these are secondary and not primary. The purchasing power of the people living in the regions afflicted by hunger should be boosted in order to stimulate distribution. If there was money to make, merchants would quickly find a way to take food into these areas.

Lack of purchasing power condemns the people of Turkana and North Eastern of Kenya to the vagaries of humanitarian aid. It is a character of humanitarian aid not to move into an area before a catastrophe has happened. Before pictures of malnutrition and dying children and women flash around in the media, humanitarian aid will not mobilize. At the same time, the government will deny any presence of a crisis and the scale of humanitarian organizations’ response remains low. When humanitarian aid moves in, at last, the situation is usually out of hand. This is what is happening in country today. Humanitarian mobilization is in high gear but for many it comes too late.

When a crisis occurs, immediate humanitarian action is necessary to avert a serious catastrophe in the short-term. However, a long-term solution should be economic empowering for those affected so as to increase their purchasing power and stimulate distribution.

Sovereign State and Independence At Last

2011-07-09T00:43:00.000+02:00

We salute and congratulate the people of South Sudan for becoming the newest state in the World and Africa. Welcome to the World Community of States. As we say in Kenya, independence was not given on silver platter. It has been a Long Road to Freedom. As you welcome and celebrate independence today, the very idea of your own sovereign state, national anthem and flag will fill your hearts with euphoria. At the same time your hearts will be filled with awe and admiration for those who shed their blood and suffered so much that you should be independent, not least the founding Father of the Nation, Dr John Garang.

All we can wish you is that your suffering as a nation may not be in vain. Although mountains of challenge lie ahead, your country is endowed with enormous natural resources and a determined people. Learn from the rest of Africa and do not repeat the same mistakes that our founding fathers and political leaders made. Cultivate unity and nationhood. Despise and avoid sectarianism, ethnic and regional favoritism, divisive ideologies and personal rivalry. Work as one nation for a prosperous South Sudan.

Can Kenyans Trust their Money to Non-Tax Paying MPs?

2011-07-07T00:29:00.000+02:00

Parliament Building

Paying tax is a legal and moral obligation. The Constitution is very candid on this. Any 'Mipango ya Kando' (side agreements) are not binding as they contravene the Constitution. These agreements can be likened to the election pledges MPs give but forgotten once in Parliament. So no theatrics from the MPs will budge Kenyans demand that the Constitution be obeyed by all, including the MPs. The time you accepted to vote in favor of the Constitution, the honey moon ended. It is not business as usual anymore. You must pay tax.

If Wanjiku is taxed on her meager income, then who are these MPs who should have preferential treatment and not pay tax? Can Kenyans trust their money on the hands of non-tax paying MPs? This is the billion shilling question. How can MPs who do not pay tax be entrusted with the allocation of tax money paid by Kenyans? Something does not add up here. It is no wonder they have been hiking their salaries in a very irresponsible manner because they do not feel the pain of being taxed. Now that they are required to pay tax, they cry as if they are entitled to a lifestyle that is beyond the dream of ordinary Wanjiku.

Parliament in Session

I am amazed to read what they keep saying to justify their stubborn position of not paying taxes. They are behaving as if Kenya is still in the older constitutional order where they could hold the country at ransom. Never ever forget that the people have a lot of power under the new constitution that if the MPs misbehave as they threaten to do, they can be send packing as the Parliament is dissolved. Just dare not pass the necessary laws to implement the Constitution and Wanjiku's wrath will rain down on you with vengeance.

In 2006 this blog termed the hefty salary increments the MPs awarded themselves as an 'Act of Corruption'. Today we repeat that not paying Taxes is an act of Corruption and is Illegal.

New Chief Justice Sworn In Office: Signifies a Break With the Past

2011-06-21T01:08:00.000+02:00

It did not escape the eyes of keen observers that the swearing in of Dr Willy Mutunga as the new Chief Justice was not ordinary. Mutunga did not wear the traditional red robe worn by the Chief Justice and puisne judges during the swearing in celemony. As explained by a spokesman of the Judiciary, Mutunga avoided the robe to signify a break with the past. This could also mean the end of the era of the robe as a judiciary attire. The robe is a relict tradition inherited from the British colonial administration.

Mutunga also promised to uphold the rule of law when he said he wants to build a judiciary where the high and low are equal before the law. In the same breath, he vowed to protect the independence of the judiciary while respecting the other arms of the government: the Parliament and the Excutive.

Later President Mr Mwai Kibaki presented the new Constitution to Chief Justice Willy Mutunga during the swearing-in ceremony at State House.

Congratulations Dr Mutunga and may the New Dawn shine over the Judiciary.

Read below the ...

Edited version of the speech Dr Willy Mutunga gave after being sworn in at State House, Nairobi on June 20, 2011

Mr President, Mr Prime Minister, Mr Vice‐President, the Speaker of the National Assembly, this is an important day and event in the history of this country.

A Chief Justice of the Republic of Kenya assumes office not just with the endorsement of all three arms of government but perhaps more significantly, with the direct participation of the public.
It is a mandate I don’t take lightly and neither should you.

This is because the Constitution is very clear that judicial authority, just like the Executive and the Legislature, are derived from the people and should be exercised for their benefit and welfare.

The nature of my mandate gives me confidence and responsibility. Guided by the Constitution and without fear or favour, it is a responsibility I seek to discharge to my best ability and intellect. This country must uphold the rule of law without equivocation and as I assume the leadership of theJudiciary, the words of an earlier philosopher ring clearly in my mind: Be ye so high, the law is above you.

This is the Judiciary I want to create — it is the true article of faith that I want to bring to the Judiciary where the high and low are equal before the law. The success of my tenure, the Judiciary and our democracy will depend on how the three arms of government relate and operate.

I look forward to a positive and productive relationship with each one of them. It is a relationship that should be undergirded on constitutional principles and guided by constitutional provisions. A relationship framed otherwise will not only be a nullity in law but a vulgarity in politics.

In this regard I seek your support even as I offer mine. This is because justice is an assembly line and the determinants of justice numerous. To meet the ends of justice, the Judiciary will depend on the competence and integrity of other institutions.

I urge both the Executive and Legislature to ensure we have investigatory, prosecutorial and penal institutions robust in their design and operation: clean and incorruptible in their leadership.

Supreme Court Nominees: A Mixture of Continuity and Transformation

2011-06-16T11:20:00.002+02:00

Dr. Smokin Wanjala Ms Njoki Ndungu

The Public Service Commission (PSC) pulled another master stroke when it nominated five Supreme Court Judges after a vigorous and transparent vetting process. The nominees are two judges of the High Court, Justice Jackton Boma Ojwang and Justice Mohammed Ibrahim, one Court of Appeal judge, Justice Philip Tunoi and two nominees from outside the judiciary former Member of Parliament Ms Njoki Ndungu and former Kenya Anti-Corruption deputy director and scholar Dr smokin Wanjala. They join the nominees for positions of Chief Justice Dr Willy Mutunga and Deputy Chief Justice Ms Nancy Barasa to sit in the seven-member Court.

Justice Mohammed Ibrahim

The choice of the nominees has been hailed as a mixture of expertise, gender and regional diversity. The combination of sitting judges and outsiders also represents continuity and transformation. The panel brings in different legal ideologies and philosophies. The chief Justice and the Deputy Chief Justice are hailed as liberals, Justice Ojwang and Tunoi as conservatives and Wanjala, Ndungu and Ibrahim as centralists. In addition, the judges bring in their experience from the Bench, Smokin Wanjala and Njoki Ndungu research, willy Mutunga research and activism and Nancy Barasa activism and management.

Justice Philip Tunoi

Given this line up, the public expectation of the Court is high. The Court's role as stipulated in the Constitution involves arbitrating over disputes arising out of presidential elections, determining appeals from the Court of Appeal, and to interpreting the constitutionality of issues arising from proceedings in subordinate courts. The current Court of Appeal as the final Court suffered from a reputation of conservatism and rigidity. The composition of the nominees to the Supreme Court can be seen as an invitation of the Court to expand the horizons of jurisprudence in its interpretation of the law. Whether the new breed of judges will inject the necessary activism and progressiveness in the Courts decisions is to yet to be seen.

Justice Jackton Ojwang

The significance of the Supreme Court also lies in the fact that it's the final resort of justice. Its formation offers Kenyans a new higher rank in the hierarchy of Courts where they can appeal for justice. For the first time also, the highest court will be occupied not by political appointees whose sense of justice may be skewed in favor of the appointing authority but by men and women whose integrity, credibility and competence has been tested and challenged in public and transparent vetting processes. When approved and appointed into their positions, the Judges will assume their duties knowing too well that they don't have to fear any authority or branch of government in dispensation of justice. The future of legal justice in Kenya looks indeed very interesting.

Judiciary Nominees: Tough to be a Reformist and a Performer!

2011-05-15T14:17:00.000+02:00

Dr Willy Mutunga

We welcome the nominations of Dr Willy Mutunga and Ms Nancy Barasa to the posts of Chief Justice and Deputy Chief Justice respectively and commend the Judicial Service Commission (JSC) for the transparent manner in which the process was conducted. However, we would like to comment in general on the vetting process of the candidates and the public expectations on the nominees.

As regards the vetting, praise was showered on the transparency of the process but forcefully too queries have arisen on disregard of respect to dignity of the candidates. This, however, was the first public scrutiny of candidates performed in the appointment of high ranking public officials in Kenya. Without a precedent to rely on, mistakes likely were made. It is not therefore, important to dwell on such mishaps, rather let us regard them as lessons learned in future vetting. On the other hand, the guest for transparency should not outweigh the need to handle the candidates with respect and dignity. Democratic principles prompted by the candid scrutiny also incorporate need for respect of candidates’ human rights. The Constitution, after all, guarantees every person the right to have their dignity respected and protected. Humiliating questions that overzealously probe into candidate’s personal weaknesses and past job performance failures can offend respect of one’s dignity. In future, the JSC should endeavor to complement the interests for transparency, accountability with that of the respect for candidate’s dignity.

Ms Nancy Barasa

The decision by the PSC to forward only one name for each of the positions to the appointing authority was courageous given the perennial disagreement of the Two Coalition Principals and bickering of their parties’ Members of Parliament and officials. Any questions that may arise can only promote politicization of the process. Furthermore, we believe the PSC was within its Constitutional mandate as the Constitution is silent on the matter. The Constitution by default seemingly leaves the decision on the number of names to be forwarded to the discretion of the PSC.

The nominees’ impeccable reformist and academic record are admirable and impeachable. Furthermore, being outsiders to the maligned judiciary, they strongly have the support of the public which views the judiciary as incompetent and rottenly corrupt. When appointed in their respective positions by the President and Prime Minister with approval of the Parliament, the nominees’ jobs will be cut for them. The public expects nothing less than a complete turnaround of the judiciary from its past reputation to a respected, competent, people sensitive and justice institution. Simply, their task is to reform and make the judiciary perform. We have no doubt that the two will do all they can to achieve this result. Nonetheless, we would like to sound a word of caution and advice to the nominees.

Firstly, the public will not measure your success according to your past credentials like the PSC was inclined to do, but on your performance in the job. The public knows too well their disappointment with people who were highly regarded as reformist in the past, especially politicians, but who became perfectionists in the same vices they were expected to combat. Judicial offices, because of their independence nature and tenure of office, may be different from political offices however the failure to perform is not normally inherently in the character of the offices but the strength of character of individuals occupying the offices. In other words, be strong and live up to your reformist character.

Secondly, being a reformist and shooting criticisms and contributions from the outside is different from a reformist shooting from within and having the duty to carry out the expected reforms. In this case, your dual roles require that you compliment your reformist zeal with performance enthusiasm. Don’t let the passion of one outweigh the other, otherwise the lath of the public will soon come falling on you like a tone of stones.

We wish you a speedy confirmation in your positions and good luck in your onerous tasks.

The Second Lot of Suspects Appear in the ICC!

2011-04-09T01:54:00.002+02:00

Uhuru Kenyatta, Francis Muthaura and Hussein Ali made their first appearance in the ICC on 08.04.2011 amid renewed warning from the Court that they observe the conditions of the summons. The Presiding Judge, Justice Ekaterina Trendafilova spoke plainly this time round cautioning the suspects against engaging in utterance that could jeopardize peace in Kenya. She said that the Court would not hesitate to replace the summons to appear with warrants of arrest.

At the same time, the Prosecutor had applied for harsher conditions that would require the three to be appearing in person before the judges at least once every six months. He also sought an order to ensure that the suspects refrain from making any public statements that contain or can be construed as containing “an open or veiled threat to actual or prospective witnesses or victims”. In addition, they should submit complete financial information. The defence lawyers too requested the Court to order the Prosecutor to restrain from making what they termed as “extra-judicial” utterances at press briefings. The Court promised to make its decision on the matter raised.

The hearing for confirming the charges against the three will be held on 21.09.2011. During yesterday's proceedings, the defence lawyers for the accused actively engaged the Court demanding that the Prosecutor provide the suspects with the evidence he presented to the Court on 15.12.2010. The Court ruled that during the planned conference on April 18, the prosecutor will give an estimate of documents he wants to use to prove the cases, number of witnesses, no of witness statements, indication whether he intends to involve victims and his many witnesses he intends to keep confidential. In addition, the defence teams will be required to indicate whether they want to call witnesses and the documents they intend to use.

With home-coming reception rally planned by the supporters of the two presidential candidates, William Ruto and Uhuru Kenyatta and their declared onslaught on their main presidential candidate rival Raila Odinga, it will be a difficult or impossible balancing act to require the two to tame their language. If Raila were to utilise this opportunity to deride his opponents, then Ruto and Uhuru could easily argue that the ICC is being used to silence them and therefore ‘working for Raila’.

The First Case against Kenyan Suspects Opens in ICC

2011-04-08T11:41:00.001+02:00

The first case against the Ocampo Six opened in The Hague on 07.04.2011 in a preliminary appearance over events stemming from the 2008 post election violence. The suspects William Ruto, Henry Kosgey and Joshua Sang appeared in Pre-Trial Chamber II before the judges with Presiding Judge Ekaterina Trendafilova from Bulgaria. The Court informed them of charges they face and their rights as suspects. They were not required to plead to the charges because they were yet to be confirmed. The Court fixed the confirmation of the charges to be held on 01.09.2011. Meanwhile the suspects remain free as long as they observe the conditions issued to them before by the Court. The presiding judge also cautioned them against use of inflammatory language in public meetings as it has been reported by the Kenyan newspapers and said that this could constitute a breach of the conditions for the summonses and trigger issuing of arrest warrants.

The spectacle of the suspects in the ICC was a humbling scene for the suspects and those who thought The Hague would never come. The proceedings were brought home to Kenyan thanks to technology that allowed them to follow live on TV or Radio commentaries. As the reality of The Hague dawned to Kenyans, the mood was a mixture of sobriety and expectations. The gravity of the matter was now starting to sink in the hyped psyche of previous week’s events. Both divides in the matter share the sense of expectations, with those who think their "leaders" have been falsely accused expecting their innocence to be confirmed in due course and those who see this as a trial of impunity expecting accountability finally.

As the second bunch of suspects, Uhuru Kenyatta, Francis Muthaura and Hussein Ali make their maiden appearance today, the ICC proceedings will continue to captivate the minds of Kenyans as long as the trials last.

THE HAGUE AT LAST!

2011-04-06T23:47:00.002+02:00

MPs accompanying the Six Suspects Photo/JOAN PERERUAN

The trial of those suspected of bearing the greatest responsibility in the aftermath 2007 post-election violence in Kenya finally starts tomorrow 07.04.2011 at the International Criminal Court (ICC) in the Hague. The long process of identifying the suspects and arraigning them in the Court has had its share of drama and tragedy. The drama played itself out with the failed search for the special local tribunal to investigate and prosecute the culprits when the Members of Parliament declared "Stop being Vague go to Hague". Then, The Hague was a far distant destination but when the ICC Prosecutor Mr Moreno Ocampo revealed the identity of the Six Suspects, the tragedy for the Six dawned with the realisation of the dawn of The Hague. Yet, the drama seems to continue with a battery of MPs accompanying the Six to the Courtroom. The way the drama is unfolding one would be forgiven to think the Six were the victims and the ICC or precisely the Prosecutor was the perpetrator. The real victims the displaced, maimed, raped, the dead and their families do not count. The cry for justice is not for the victims of the violence but the Six. Kenya may misplace its priorities by overdramatizing the fate of the Six, however I hope the guest for justice for the victims and the punishment of impunity will always guide the actions of the international community and the ICC.

Photo/JOAN PERERUAN

The Six may be innocent but at least they will have their day in the court where they can contest and demonstrate their innocence. However, the victims of the violence never had the chance to defend themselves and demonstrate their innocence.

Let us also remember that Kenya freely drove itself to the Hague and not the other way round. The ICC did not invite Kenya to The Hague. When Kenyans butchered each other and the Kenya government failed to carry out its primary responsibility of a sovereign State to investigate and prosecute the perpetrators of the violence the intervention of the ICC became inevitable. This is not the first time Kenya has failed to punish impunity. We all live in the dreadful memories of the prior elections' violence and subsequent impunity and lack of criminal accountability.

Love of a Mother Photo/PHOEBE OKALL

As Kenyan government exercises its sovereign right to challenge the admissibility of the cases and asking for a deferral, it is only a sincere effort to create local procedures to try the suspects that will be rewarded with deferral. I truly believe that Kenya should have taken the challenge earlier and established a local tribunal rather than going The Hague path but that is water gone under the bridge now. For the Six The Hague is a reality and for the victims of the violence it is a start for justice.

Access Specialized Kenyan Daily News Now

2011-03-04T14:06:00.007+01:00

Using the linking power provided by this blog infrastructure, we are now able to bring you very specialized news from Kenya. To navigate through various news items, just click the links under the heading Kenya News on the column on the right and get current news on Corruption, Human Rights, Constitution, Judiciary, Executive, Economy Devolution and Counties.

Please also tell us what other news you would like us to link you to through the commentary link below.

Stella Mwangi Wins MGP Final Norway

2011-02-14T15:20:00.010+01:00

Stella Mwangi an artist of Kenyan origin in Norway won the coveted Melodi Grand Prix title in Norway 2011. Stella singing her winner song “Haba Haba Hujaza Kibaba” will now represent Norway in the Eurovision Song contest in Düsseldorf, Germany in May this year. Haba Haba song scored definite majority votes 280,217 against the closest rival “the Blacksheeps” song “Dance Tonight” 155,059 in an eight finalist contest in the 5,000 spectator fully parked Oslo Spectrum on Saturday 12.02.2011. Two weeks earlier, Stella won a direct final ticket in one of the elimination finals held in Skien in Norway. Since then the single hit Haba Haba has been No. 1 on the iTunes list in Norway.

Stella Mwangi and her family came to Norway as political refugees at the tender age of four years. According to her, she has always liked to sing. Although her music has made inroads in the African continent, this is her first debut in the Norwegian music scene. And she did it in a big way.

Apart from the spectacular dance performance accompanying the song, the song text is great and full of motivational significance. Stella composed the song herself from the encouraging words of her grandmother “Haba haba hujaza kibaba”. In the simple text, Stella captures the eternal wisdom taught by personal development books and speakers on significance of having a dream, vision, belief, faith, action, persistence, and gratitude. It is all about the law of attraction and the secret of success. The song has a profound message to all listeners and especially young people, that “if you have a dream and work hard to achieve it, persisting even when the going gets tough and having faith and gratitude for the small steps taken, little things and achievements you encounter every day, you will finally succeed.” Stella is at the threshold of her success. She is a living testimony to the veracity of the old tested message in her song. It resonates with the Obama “Yes We Can” catchphrase.

Here is the text:

When I's little girl
My grandma told me
That I could be just anything I wanted to be (repeat)

She said...

Everything I work for
Everything I wish for
Everything I look for
It is just in front of me. (Repeat)

And she said...

Haba haba hujaza kibaba.

When I's a little girl
My grandma told me that
It is the little things in life
That’s gonna make me happy

She said...

Little by little fills up the measure
Don’t ever give up keep on moving
Little by little fills up the measure
Don’t ever give up keep on moving.

Haba haba hujaza kibaba

As a person of Kenyan origin living in Norway, Stella makes me proud. Stella’s family was there to support her, witness her victory, and was extremely proud of her. Her success has made Norway, Kenya, Africa and all immigrant peoples proud. By breaking the barriers of prejudice and bigotry, Stella has demonstrated that if you are good at what you do you are unstoppable. But the real congratulations go to the Norwegian people. Their overwhelming vote for Stella attests to the superiority of merit over prejudice.

I believe that Europe is ready for Stella and the best song will win in May.

Kenya Celebrates First Mashujaa Day

2010-10-20T23:53:00.003+02:00

Mashujaa Day is one of the three public holidays in the newly promulgated constitution. Mashujaa day which means (Heros' Day) replaces the former Kenyatta day which is celebrated on every 20th October. The first Mashujaa day was celebrated by honoring the pre-independence days heros and today's heros from all walks of life. For the first time in the history of Kenya these gallant sons and daughters were publicly acknowledged and honored. What a change of perspective and vision. The spirit of the new constitution is really about to shape the attitudes and priorities of Kenya people.

A New Kenya, A New Dawn, A New Vision!

2010-08-26T23:38:00.005+02:00

When Kenyans voted for a new constitution on 4 August 2010, they believed in their own minds and hearts that they voted for a New Kenya, a New Dawn and a New Vision. In contrast to the past, they maintained peace, decorum and calm during the campaign period and on the voting day. They clearly despised and shunned the few instances of hate speech and the perpetrators. As it were, the Kenyan people were sending a clear message that the past era was gone and a new dawn had set-in in the country. With the promulgation of the new constitution on 27 August 2010, it is desirable to reflect on the significance of these words.

A New Kenya

The people of Kenya had longed for a new political order for decades. Although many would suggest that the quest for a new constitutional order started 20 years ago, the truth of the matter is that, it goes further back to the days immediately after the independence. Kenyans never liked the way the political elite governed for the past 47 years. They hated the way the elite wrestled political power from the people and converted democratic institutions to vehicles of one-party and one-man dictatorship. In the New Kenya, Kenyans envision restoration of political power to the people and their democratic institutions. Political power no longer should reside in a dictatorial state but in the people of Kenya and peoples’ democratic institutions. This is precisely the strongest assertion the new constitution makes.

The Constitution starts in Article 1 by affirming that the sovereign power resides in the people of Kenya and not the State apparatus and institutions. The State organs and institutions exercise the power as delegated to them by the people in accordance with the constitution. The state organs are there to serve the people not the other way round. The era of people’s subservience to the State has ended. In the new order, there is no room for an imperial president, overbearing executive and parliament and partial judiciary. These institutions have to function within the limits of the powers conveyed to them under the constitution. They must respect the devolution of power and independence of institutions. No constitutional institution is superior to the other as all derive their powers from the people. Nonetheless, the institutions must cooperate in exercise of these powers. They also must act as checks and balances on each other in order to protect peoples’ sovereignty and promote rule of law and constitutionalism.

Independent constitutional institutions and offices such as the National Human Rights and Equality Commission, the Electoral and Boundaries Commissions, the National Land Commission, the Commission on Revenue Allocation, the Salary and Remuneration Commission, the Public Service Commission, the Teachers Service Commission, the National Police Service Commission, the Judicial Service Commission, the Parliamentary Service Commission, the National Police Service, the National Intelligence Service, the Kenya Defence Forces, the Attorney General, the Director of Public Prosecutions, the Auditor General and the Controller of Budget all have to work within the limits and confines of the constitution and law. Their purpose is to serve the people and not any particular arm of the government. In the past, most of these institutions purported to serve the whims and interests of the ruling elite. Their objects, as stated in the constitutions, are to protect the sovereignty of the people, secure observance by all State organs of democratic values and principles and promote constitutionalism. Kenyans expect nothing less.

The new Kenya ushers a new era of governance. It is the era of governance through the constitution and institutions. This is in contrast with the past when individuals heading these institutions were bigger than the institutions themselves. In the new Kenya, institutions will no longer be synonymous with individuals. The institutions must carry out their functions independent of the individual leaders.

A New Dawn

A new dawn brings with it new expectations. In Kenya, a new dawn arrived with the voting of the new constitution into law. As the people celebrate the promulgation of the new law, they do so full of expectations of a new era as describe above. They foresee an era of democracy, rule of law, constitutionalism, human rights, and economic-social development and prosperity. However, they are not naive. As the saying goes ‘once bitten, twice shy’, they know that for the new dawn to have meaning, they must remain vigilant and defend the constitution from those who would like to undermine it. As the constitution moves to the implementing stage the people must guard against elements that have always worked against the realisation of the new political and legal order. The populace must identify, shame and shun any person, group of persons or institution that may attempt to circumvent the proper and full implementation of the new constitution. That is the only way the constitution will be a New Dawn to Wanjiku.

A New Vision

In the past, new dawns like the one being experienced now too soon turned into dusk as those entrusted with implementation lost the vision that united them during the struggle. Immediately after independence in 1963, the independence political party, Kenya African National Unity (KANU), lost its vision when the leaders of the struggle and new independent Kenya were engrossed in personal, ideological and ethnic antagonism. The same happened after the historic election of 2002 when National Rainbow Coalition Alliance leaders turned on each other for the same reasons. Personal, ideological and ethnic rivalry did not serve Kenya well in the past and this time round the political leadership must learn from history and avoid such conflicts for the sake of unity and prosperity.

The new constitution encompasses a New Vision of constitutionalism and institutionalism. The full and proper implementation of the constitution is the only guarantee that the New Kenya the people voted for and the expectations of the New Dawn are realised. The political class should not short-circuit the people of Kenya again.

Long Live New Kenya, Long Live New Dawn, Long Live New Vision.

Kenyan Tourism Advert Commuting around in Berlin City

2010-07-17T23:55:00.004+02:00

Recently while in Berlin City for holiday, I was surprised to notice a big Kenyan tourism billboard Ad on the side of one of a Berlin public transport bus. Before I could point my digital camera for a picture, the bus zoomed away. However, on the last day of my stay in the City, the bus with the billboard Ad stopped just close to where I stood. This time round my camera was handy and I took the picture above which I wish to share with you.

The reason for sharing this is first to commend those behind the Ad for a good job. Secondly, it filled me with pride to see the Ad. Such is the positive image of our country one likes to see in foreign countries. Those concerned ought to extend the project to other cities in Europe.

2010 Referendum: Don’t Get Duped Again! Vote YES

2010-04-05T13:46:00.002+02:00

Parliament squandered it chance to influence the new constitution but heroically endorsed it. Although majority of the proposed amendments were ill conceived, a minority were desirable. Just to mention few: the amendment to increase the number of counties from 47 to a higher number agreeable (necessary to ensure adequate representation in the senate), the abortion clause (could have been made neutral or scrubbed out, after all silence does not mean endorsing or prohibiting. The courts could have been left the discretion to develop the law in the area and therefore avoid offending the Christians), the Kadhi Courts could have been left out of the constitution (after all the Muslims have not demonstrated compelling reasons for retaining the courts in the constitution. Furthermore, the historical reasons for entrenching the courts in the constitution 47 years ago may not be valid today. There was no adequate debate on this outside the historical justification).

The parliament failed in its responsibility to interrogate these issues. It allowed itself to be divided on party lines, ethnic, regional and parochial interests. If the constitution faces strong opposition during the referendum, the parliament should bear the responsibility.

That said, Kenyans should not allow themselves to be duped this time round like in 2005 referendum into rejecting this constitution. No constitution is perfect and a perfect constitution is a utopia and an ideal to strive to. Despite the shortcomings, this constitution if passed, will radically impact on Kenyans’ lives, democracy, institutions, governance, economic development, resources distribution, and human rights as well as the rule of law and gender equity.

Admittedly, though important to sections of the society, the flaws are too few. Focusing on the almost full glass is better now than on the empty glass. In 2005 the focus was on the shortcomings. Consequently, the good in the constitution which would have given Kenyans a better society were overlooked. Kenyans should reject anyone telling them to wait for a perfect constitution. It is better to seize what is on the table now, and then as the President and the Prime Minister implored, improve on the inadequacies in the future. Believe me once the new constitution becomes operational, the shortfalls will look trivial and chances for amendment may improve.

A word of caution to the politicians and church leaders taking hard positions: The 2007 post-election violence was not a result of a bad constitution but of inflexible positions. Rigidity blindfolded politicians in 2005 that they could not see the consequences of going to an election on an inadequate constitution.

Politicians may not do much damage to the constitution through opposition this time round. But Christian church leaders may have undue influence on their followers. Although I do accept that the issues at the heart of church leaders may have escaped adequate deliberation by the Parliament, Parliamentary Select Committee and Committee of Experts, the constitution is so important to the health of the entire nation that to oppose it may not be the prudent thing to do. My advice is that the love for the good of the nation should temper church leaders’ grievances and the obvious flaws.

Vote YES now! It is better to argue about amendments rather than the whole document in the future.

A Good Draft Constitution but Not Perfect! Part 3 of 3

2010-01-06T11:18:00.002+01:00

This is the Last and Thrid part of my comments to the Constitutional Committee of Experts on the Harmonized Draft Constitution. See Part 1 and 2 below.

Representation in a Devolved System
The harmonized draft constitution proposes a three tier devolution system. I have no quarrels with that. Devolution is viewed in many countries as a way to dampen regional, racial, ethnic, or religious cleavages, particularly in multiethnic societies. These should be desirable results in Kenya. That being so the costs of devolution should not be viewed as unnecessary burden to the economy.

The establishment of a bi-camel legislature is good for ensuring democratic balance between majority rule and minority rights. The lower house safeguarding majority rule principle and the Senate protecting minority rights and regional interests. To achieve these results representation in both houses must, however, comply with some basic standards of boundary delimitation: impartiality of boundary authority, equality of voting strength, representativeness in drawing constituencies, non-discrimination by avoiding boundary manipulation, and transparency. While Article 113 of the draft provides for the standards, delimitations of regions and counties in First Schedule and Article 5 (2) seem arbitrary especially when representation in the Senate and Regional Assemblies are based on the number of regions and counties. The principle of equality may not have been complied with especially as regarding the county level. The populations of some of the counties may be too large such that equality of voting strength is not respected.

Similarly, equality principle in representation in the National Assembly should be adhered to in order to make majority rule meaningful. There are perceptions that the way current constituencies are drawn does not comply with the principle of equal representation. The populations of constituencies are not equally divided so as to provide voters with equality of voting strength. In my opinion the representation in both houses should be seen to be fair so as to make devolution meaningful. The people should feel adequately represented at all level of devolution and not circumvented.

Finally, thorough proofreading should be done to the final draft so as to avoid some obvious errors such as in Article 125 (3). The reference to Article 141 (2) (a) does not correspond with the contents of this Article.

A Good Draft Constitution but Not Perfect! Part 2 of 3

2010-01-05T10:31:00.002+01:00

This is the second part of my comments to the Constitutional Committee of Experts on the Harmonized Draft Constitution. See Part 1 below this one.

The Executive Powers
In the harmonized draft you propose a hybrid system with an elected president who wields state constitutional powers and a prime minister from the party with majority in parliament on whom executive powers reside. In your effort to clearly define the powers of the president and prime minister so as to avoid conflict you ultimately created a parliamentary system rather than a hybrid system. In the draft, the president has no executive powers at all. He or she is for all practical purposes a ceremonial figure. He or she has little if any influence on policy and how it is implemented. The legislative powers granted to him or her cannot be exercised without the connivance of the prime minister who heads the cabinet that must approve a legislative proposal by the president. The power of the president to assent bills also seems ceremonial as the veto powers are curtailed by allowing a lower member vote threshold in parliament. A president who is elected by the people and in whom executive powers do not reside should have veto powers which are to be exercised to influence policy and protect the interest of the people where these are disregarded by the parliament and the cabinet. In fact, I would propose providing for president to be able to present a bill directly to parliament without the approval of cabinet and where the parliament and president disagree on a law the president should refer the bill to a referendum.

In my opinion, a hybrid system makes sense where the president and the prime minister share real executive powers. The current Grand Coalition Government is a real hybrid system. In order to avoid conflict, the two principals can only act through consultation and cooperation. The existence of multiple powers should not necessarily imply conflict. The best solution in a hybrid or mixed system is not to strengthen one to the detriment of the other. Whether this is the system of government Kenyans want I cannot say. In the previous constitutional drafts, that guided you in your work on the new draft, Kenyans had not contemplated a Grand Coalition Government. Their experience with the current Grand Coalition Government may not be positive so as to persuade them to accept a hybrid system the way it is formulated in the harmonized draft.

The objective of a government is to ensure democratic rule and economic development for its people. The preference for a hybrid system stems from the fear that new democracies are likely to revert to authoritarianism. The need to redistribute executive power between the president and the prime minister therefore becomes necessary. The fear is, however, not supported by evidence. To the contrary, evidence points to so few new democracies that have actually reverted to authoritarianism.

On economic reform performance, the hybrid government seems to do well only where the president and the prime minister share real power. This is because both strong presidents and strong prime ministers exert a positive effect on the implementation of economic reforms. The ideal strategy for hybrid constitution is not the strengthening of one to the detriment of the other. Rather, the implementation of reforms will be maximized at a point in which both the president and the government have significant powers to intervene in the policy process.

Whether the country adopts a parliamentary or presidential system is inconsequential to the level of democratic rule and democratic development that obtains in a country. Both systems were adequately represented among authoritarian governments of Africa and elsewhere. Conversely, the two systems are aptly represented in successful democracies and developed economies. Each system has its own advantages and disadvantages and none fairs better than the other. The strength of one over the other really depends on one’s preference.

Efficiency, rule of law, accountability and so on are inherent in both systems. The choice for one over the other is dictated by other factors. Peculiarity of a country; culture, past experience, level of development and geographical region seem to influence the choice. Kenyans have experienced the presidential system for the last 46 years. Culturally, the presidential system is more familiar to them than the parliamentary system. Although Kenyans have had bad experiences of dictatorship under the presidential system in the past, this did not dampen their preference for an elected president going by their documented views before Bomas. As has been eloquently put by others, Kenyans want to elect their own CEO whom they can hold accountable rather than experiment with unpredictable parliamentarians and political parties. Kenyans do not trust political parties and MPs who change positions on political expediency. At the same time, Kenyans reject an imperial president who “Lords” over them.

In this regard, you were right to propose a hybrid system of government but wrong to transfer all the executive powers to a prime minister and parliament. In the past, the main problem was lack of cooperation avenues among institutions in the presidential system. The system of government Kenyans want falls in between the presidential and parliamentary systems. The executive powers should be shared between the president and the parliament in order to encourage cooperation between them. A strong president and a strong prime minister (close to the French system) seem to be the preferred solution as the pure presidential system is in the past and the future can only be left to posterity. The making of constitution is different today from the making of the constitution in 2003. Let us find solutions to the current problems of governance. So the challenge is how to strike the right equilibrium.

Check out the Final Part 3 on the representation in a devolved system tomorrow.

A Good Draft Constitution but Not Perfect! Part 1of 3

2010-01-04T10:52:00.002+01:00

I would like to commend the Committee of Experts on Constitutional Review for proposing a good draft Constitution for discussion. The draft is a good starting point but not perfect as no constitution is perfect. A constitution is a living document which tries to rectify the past wrongs while solving present problems and proposing a road map for the future. In this sense, a good constitution is both backward looking and forward looking. But importantly, a good constitution attempts to solve present problems without being a captive of the past and without imposing solutions to future generations. While we can try to mend the past we cannot predict the future. Posterity will have to solve their problems. But if we construct a good foundation for governance today, the future generation will be inspired by our foresight. So in my view a good constitution is one that offers solutions to our present problems inspired by past experiences and future expectations. Such a constitution cannot be perfect for all times.

I think that the Harmonized Draft Constitution aptly endeavors to find solutions to most of the pressing problems of our nation today. That said, however, there are areas that may need more attention. The draft has positively dealt with matters concerning human rights by targeting political, civil and socio-economic as well as cultural rights, environmental rights and utilization and development of natural resources. In this sense, it has reinforced the fact that human rights are indivisible. It has also appropriately addressed gender balance and disadvantaged persons’ rights in most aspects of life. The rights of minority groups are also in focus. Provisions on citizenship and dual citizenship are also welcome. Land rights, which have been a major cause of conflict, are adequately spelt out and are reinforced in the recently adopted National Land Policy. The provisions on political parties are commendable. The separation of offices of Attorney General and Director of Public Prosecutions and the creation of a new office of Public Defender is innovative. Of course, I am aware that individuals and groups directly affected by some of the rights and provisions will make their views known and where necessary suggest improvements. As such, I will not dwell on such shortcomings here.

My main concern in this commentary is on matters which are still regarded contentious and require input; executive powers and representation in a devolved system.

Check Part 2 tomorrow.

Stage is set for ICC Intervention in Situation in Kenya

2009-12-03T14:06:00.001+01:00

After meeting the President and the Prime Minister in Kenya on 5 November 2009, the Office of the Prosecutor (OTP) of the International Criminal Court decided to request the Pre-trial Chamber’s of the ICC for authorization to investigate the Kenyan Situation. The decision was prompted when the Kenya government declined to refer the matter to the ICC according to Article 14 of the Rome Statute.

Pursuant to his decision, on 5 November 2009 the ICC Prosecutor Mr. Luis Moreno Ocampo notified the Court of his intention to submit a request for authorization of an investigation into that situation under article 15, paragraph 3 of the Rome Statute of the International Criminal Court by 1 December 2009. The Court on its part expeditiously decided on 6 November 2009 to assign the situation in the Republic of Kenya to Pre-Trial Chamber II with immediate effect. According to the Court, the request is based on the Prosecutor's determination that "there is a reasonable basis to proceed with an investigation into the Situation in the Republic of Kenya in relation to the post-election violence of 2007-2008".

Kenya ratified the Rome Statute on 15 March 2005, which entered into force for Kenya on 1 June 2005. In December 2008 Kenya domesticated the Statute by enacting the International Crimes Act of 2008. The Act, however, entered into force on 1 January 2009 and therefore it does not apply to the post election violence crimes according to the retrospective principle in the Constitution. The international jurisdiction of the ICC, however, applies to Kenya under the complementarity principle. According to this principle the ICC may intervene only if there are no national proceedings against those responsible for the crimes. This is the assurance Mr. Ocampo sought from the Kenyan authorities during his visit. But the response from the government was equivocal. While they promised to cooperate with the ICC they at the same time refused to refer the matter to the ICC but expressed their commitment to pursue national mechanism to deal with impunity.

The events in Kenya are of interest to international criminal justice and jurisprudence. Firstly, this is the first time the ICC Prosecutor is invoking the powers conferred to him under Article 15 to open proprio motu investigations on a situation occurring in a State Party to the ICC. The other situations under ICC investigation and prosecution, respective State Parties namely Uganda, the Democratic Republic of Congo (DRC), the Central African Republic (CAR) referred the matter to the ICC and the United Nations Security Council referred the situation in Darfur, Sudan (a non-State Party). Moreover, the situation in Kenya presents the ICC with its first case in which a request for authorization has been made by Prosecutor. The determination of the case will be precedent setting irrespective of the outcome.

Secondly, the application of the complementarity principle in the Situation in Kenya will be interesting to explore. According to the principle, States remain the primary enforcers of international criminal law, and the ICC is only a court of last resort established to complement national systems where they fail to conduct adequate investigations and prosecutions. The ICC cannot intervene if the State is willing and able to fulfill its primary responsibility. The question is whether Kenya has failed to conduct adequate investigations and prosecutions against those criminally responsible? The answer may seem quite obvious but the reasons may not be apparent. In my opinion, a thorough examination and analysis of reasons and thinking of the Kenya government and the Prosecutor could elucidate the issue further.

The Government of Kenya may be playing hide and seek game with the ICC but its options have run out. Despite Prosecutor’s indulgence on complimentarity basis the government has failed to establish a special court to deal with post-election impunity as required by the Waki Commission Report (Report of the Commission of Inquiry into Post Election Violence (CIPEV)). The government declines to admit it has failed. Its double edged statement after the meeting with the ICC Prosecutor in Nairobi confirms government’s motives. The government could be thinking that by allowing the Prosecutor to take the initiative, they still have room for maneuver if within the 30 days of notification of authorization by the Prosecutor of commencement of investigations it claims to have put in place local mechanisms by setting up a local tribunal. Such a move could slow down the ICC process but will not stall it as the Prosecutor could notwithstanding seek Court’s authorization to proceed. As argued below he has adequate reasons to do so.

From a political perspective the government’s refusal to refer the matter to the ICC may have been triggered by the fear of being declared a failed State. The motive of the government is not to be seen to have failed in its primary responsibility of punishing impunity. Otherwise, it will rank with other failed States such as DRC, CAR and Sudan. But covertly the government seems to want the intervention by the ICC.

The ICC Prosecutor seems to operate from a number of convictions. The first is that the government has failed in its primary responsibility of investigating and prosecuting those bearing greatest criminal responsibility and the ICC’s intervention is inevitable. The Prosecutor’s mission to Nairobi was to inform about the way forward to the government not to negotiate with it on national mechanisms. It was the Prosecutor’s expectation that the government would refer the matter to the ICC, and failure to do so that he would move to ICC. His prompt action to request authorization from the ICC was an anticipated reaction.

The second conviction was repeated in his statement in Nairobi. The Prosecutor said that he is of the opinion that crimes against humanity have been committed in Kenya. “In accordance with his preliminary examination of the situation, there is reasonable basis to believe that the attacks against Kenyan civilians during the post election violence, constitutes crimes against humanity under the jurisdiction of the ICC. In accordance to Article 7 of the Rome Statute, a crime against humanity means a widespread of systematic attack directed against the civilian population.”

The third conviction is based on the mandate of the ICC “to put an end to impunity and thereby contribute to prevention of future crimes” as provided in the Preamble of the Rome Statute. The Prosecutor is convinced of the urgency of investigations and prosecutions in the situation in Kenya because, according to him, it will contribute to justice and prevention of impunity in the coming general election 2012. He does not believe that a national process would act expeditiously and decisively before the next general election in 2012. As he has always insisted “the ICC is ready to make Kenya a model example in prevention of impunity”. This is an opportunity he would not like to slip away.

The fourth conviction is that ICC proceedings should go hand in hand with complementary investigations and prosecutions at the national level as well as healing and reconciliation processes. The Prosecutor does not exclude national proceedings aimed at dealing with numerous cases of impunity which the ICC cannot address. This is the basis for the Prosecutor’s three-prong approach: The ICC to try those bearing the greatest responsibility, a local tribunal to prosecute other offenders and the non-prosecutorial Truth, Justice and Reconciliation Commission for healing and reconciliation. Impunity is deeply ingrained in the Kenyan society and a single process such as the ICC cannot undo it. A combination of mechanisms seems appropriate.

The fifth conviction is that the Kenya government is committed to cooperate with the ICC. The litmus test for the government’s seriousness, however, will come when the warrants of arrest are issued. If the government does not comply with the arrest orders then its assurances will amount to mere political gimmicks and theatricals. The process is, however, inexorable.

Configuration of the factors above has set the stage for ICC intervention in the Situation in Kenya. Political intrigues and interests will undoubtedly attempt to derail the process but this tactics might not succeed this time. Even if politicians dither, the ICC Prosecutor is committed to ensure impunity is punished and future crimes are prevented. Besides, the ICC process has the support of the public and the international community. The engagement of the ICC in the Situation in Kenya is also an assurance to the victims that those bearing the greatest responsibility will not win again.

This article was first publishe in Pambazuka News on 26.11.2009

I Like the New Raila I See!

2009-10-11T13:55:00.003+02:00

With this contribution I want to go against the mainstream belief that Raila Odinga has become comfortable in his current position of the Prime Minister of Kenya and abandoned his revolutionary charisma.

Believe me I like the new Raila I see. I would like to think that Raila has matured as a politician. He has become a statesman, a Prime Minister of all Kenyan people and abandoned political activism. He has changed tactic from the confrontational revolutionary fire spitting politician to politically engaging and even disarming statesman. His silent engaging politics are more effective in the current political landscape than his cries of lack of toilets, carpets and consultation. Consultation is a mutual exercise. One has to be ready to go into it with good faith for it to produce good results.

Instead of imputing bad faith in Raila, I think the civil society and media should see the light and change tactic too. There is time for everything. There is time for revolution and confrontation and there is time for evolution and engagement. This is time for evolutionary and engagement politics and Raila has read the writings on the wall correctly. The civil society, media and a large section of the society in Kenya is still living in the past.

In 1992 Kenya changed from one-party state to a multiparty state. But the opposition leaders, civil society and media did not change. They approached politics in the same old way of confrontation. In 1997, the opposition embraced engagement and the interparty agreement was reached. The outcome was a seemingly independent election commission that organized the 2002 general elections. Perhaps without this agreement the successful 2002 general elections that overturned tables for Kanu would not have been possible. But immediately in 2003 the confrontational politics resurfaced with wars on the Narc Memorandum of Understanding (MOU) and the constitutional process. The standoff culminated to the 2007 post-election violence as the main political parties and their leaders refused to yield way to each other. The ensuing Grand Coalition Government in 2008 was characterized by confrontation in the first year in office. But now the so called Principals seem to have realized the futility of their obstinacy and inflexibility. Because of the lack of flexibility in civil society, some politicians, the media and a large section of the society, Raila is readily labeled a traitor and having betrayed the revolutionary path.

Learning from history, we see that the Kenyatta and Old Odinga confrontation in the 60s plunged the country into a paradigm of confrontation politics that has consumed the country for the last 45 years. Isn’t it time to shift paradigm and build on the things people agree on and not devour each other on real or perceived differences? Is it not easier to build on the already achieved reforms rather than whining over an empty glass? Kibaki and Raila in their new found cooperation can propel Kenya to greater heights in terms of political reforms and economic growth if they were given full support rather than being criticizes from all corners. This is time for talking with each other rather than to each other. It is not time to draw lines between reformers and anti-reformers. Divide and rule tactics will only destroy the good faith that is required to see the reforms through. The saying that, it is easier to swim downstream rather than upstream, is apt here. Raila and Kibaki have opted to swim downstream by choosing to be bigger than their revolutionary and conservative selves respectively and by engaging each other in the reform paradigm.

It is easy to be tempted into rubbishing the already accomplished work on reforms by invoking the seemingly impossible work ahead, but little progress will be made without painstakingly laying down the legislative and institutional building blocks for the reforms to take off. The various legislation that have established institutions such as the election commission, the constitution committee, the election boundary reform commission, the truth, justice and reconciliation commission, and the national cohesion and integration commission are not baby steps given where Kenya was January last year. Now is upon Kenyans to give these institutions the moral support they need in order to carry out their work effectively. On land reform, the adoption of the National Land Reform Policy by the Cabinet is also another milestone. The parliament should move very fast and adopt it too. On the infrastructure such as roads anybody living in Kenya today will attest to the work done and still going on. Other areas are those involving socio-economic development and on these one too the CDF, Kazi kwa Vijana, women and youth development funds are also not small things.

There are still areas where the government needs to do more especially as regards impunity and corruption. Reforms in the judiciary and police need more momentum. But confrontation will not achieve much. The reality is that impunity, corruption and insecurity are endemic and must be dealt with decisively for stability and security to return in Kenya. But what one hears from the civil society, media, a section of politicians and foreign diplomatic missions is prophesies of doom and hopelessness. What is required is courage in engagement and not in confrontation. Raila and Kibaki are showing leadership here while the rest of the society is droning. The Parliament need to be tough but at the same time it should see beyond its current war on supremacy with the Executive. It should not be pursued at the expense of necessary reforms.

Comprehensive and sustainable reforms are possible before 2012 but the entire country should move in the same direction. It should be on the same wave length. I think Raila believes in this, Kibaki believes in it too. Kenyans should also believe.

Congratulation President Barack Obama for the Audicity to Hope

2009-01-20T15:40:00.001+01:00

This blog would like to congratulate President Barack Obama for his inauguration as the 44th President of the United States of America. At the same time it reflects on the lessons his achievement teaches us.

Today history is in the making for the millions of black people all over the world. Your presidency in the most powerful country in the world uplifts many people of the trodden race. You have made what many thought was impossible achievable. This has a number of lessons for the black people.

The first lesson goes to the African leaders. True leadership is about uniting the people not dividing them. The evils bedevilling Africa from poverty, disease, ignorance, illiteracy, war, hatred, bigotry, corruption, you name it is a result of false leadership. Obama has demonstrated that true leadership does not thrive on the misery of its people but on the hope and inspiration it brings to the people. On the other hand, African leaders have used all tactics in their possession to divide the people on ethnic, religion, and regional lines in order to get and remain in power. If Obama had listened to bigotry he would not have won the presidency. Through his actions and words he proved that the presidency was not about African-American turn but about the best candidate. How many times have we heard African leaders shout themselves hoarse “it our turn now”. By projecting himself as the best candidate, Obama won the hearts and minds of the people. True leadership is about winning the hearts and minds of the people and not preaching divisive hatred and fear.

President Obama has demonstrated that it is only through the cooperation of a people that their greatness can be attained. For him a great America is not black, white, Asian or latino. A great America is black, white, Asian and latino. It is a poor and rich, young and old America. You cannot exclude any one race or class and then claim greatness. On the other hand, African leaders are masters of exclusiveness. Their greatness comes from their race or ethnic group in exclusion of all the others.

President Obama has also proved that a great leader does not ally himself with bad and tainted leaders or persons. When Reverend Jeremiah Wright preached bigotry he denounced and rejected his prejudices. Obama said, "I categorically denounce any statement that disparages our great country or serves to divide us from our allies . . . I reject outright the statements by Reverend Wright." A leader could have a big constituency of votes but that is not what matters to Obama. Integrity comes first. Our African leaders embrace even murderers.

The second challenge is to the African, black and all trodden people – complain about the wrongs done to you but do not embrace a victim attitude. Do not let anger and bitterness overtake you. Abhor the injustice suffered but do what you must do to uplift yourself. In Obama’s words, “never succumb to despair or cynicism; you must always believe that you can write your own destiny.” If Obama had emphasised his disadvantages, he would not have had the capacity to dream big and go for presidency. He would have consoled himself by saying “no African-American can ever win the presidency”. But he dreamt and his dream came true.

Why Waki Report is Different!

2008-11-10T10:49:00.002+01:00

The Waki Report and its recommendations belong to the people of Kenya and the international community. The politicians can only decide to trash it at their own peril.

The implementation of Waki Commission recommendations on impunity do not depend on the national mechanism solely. Previous commission reports such as Akiwumi, Kiliku, Goldenberg and Ndungu, were not implemented because they solely relied on the national process. The Waki report is different because the national mechanisms are only recommended if they work. If the coalition government fails to act or acts in a manner that is deemed inadequate, international procedures will be invoked.

The international dimension is already causing discomfort in the coalition government and among the political elite. It is dawning to them that it is difficult to ignore the report unlike the previous ones. Similarly, rejection or half measures meant to circumvent the recommendations will not work this time round.

Let us look closely at the interplay of the two mechanisms and why this was the best solution for the situation in Kenya.

Under international law the primary obligation to enforce the law lies on the national authorities and institutions. States and governments exist precisely for this reason. The Waki Commission restated this obligation when it called for the establishment of a special tribunal. The tribunal is to investigate and prosecute those found to have played significant role in organising and planning the violence.

The special tribunal must meet international standards for it to have legitimacy. The most important standard it must comply with is to seriously deal with impunity and not reward it. Governments notoriously use amnesty as a political and legal tool to circumvent justice. This is what Waki was realistically avoiding.

By their utterances and demeanour in the public and the media, the political elites are already contemplating amnesty as a soft landing for their colleagues. International law, however, does not look favourably on national amnesty especially if its purpose is to defeat justice and reward impunity. If the coalition government uses amnesty and other measures to reward impunity, the international mechanism established under the International Criminal Court will be resorted to.

The ICC is complementary to national criminal jurisdiction and as such an institution of last resort. The ICC jurisdiction is invoked only when the national jurisdiction cannot be exercised. That is when there has not been any national investigation or prosecution of the case or a state is genuinely unable to carry out the investigation or prosecution of alleged criminal under its jurisdiction, or is unwilling to do so, as stipulated in Article 17 of the Rome Statute.

The Waki Commission was contemplating all these scenarios. It was contemplating a situation where the government would ignore or reject the report and do nothing. That is, it fails to establish the special tribunal as recommended and does not even attempt to apply other domestic mechanisms such as a truth, justice and reconciliation commission. It also anticipates a situation where the government may establish the special tribunal but undermine it so that it does not accomplish its purpose. It may for example, limit the powers of the tribunal or deny it enough financing so that it fails to carry out adequate investigations and prosecutions.

Lastly, the government may not be in a position to carry out the investigations or prosecutions because it has no financial and personnel capacity to do so. The judiciary is weak or non-existent. It may also fail because doing so would cause serious political and social raptures in society.

Applying national mechanisms have the advantage of the affected community dealing with its impunity and therefore finding a sense of healing and restoration. But it could also lead to serious divisions in the society that may engender more impunity. In the latter case, the national process may not be the appropriate solution.

The international mechanisms, on the other hand, evoke resentment and sense of interference. It may be seen as interference with national sovereignty. But the latter is mainly used to defeat justice by the perpetrators. The resort to international jurisdiction may be the best solution where fear of political interference and social divisions in the society is immenent. Trying perpetrators in distant foreign land can lessen tension in the society as the trial can lose its mobilising effect.

The Waki report cannot end up gathering dust on the shelves of bureaucratic offices like its predecessors. The government will have to implement it effectively or risk the ICC taking over the matter. In either case, the people of Kenya should be the winners and impunity the loser.

Who Controls ODM?

2008-10-31T12:15:00.003+01:00

In Kenya every political party “ina wenyewe” has its owners. Who are the owners of ODM? After ODM rejected the Waki Report (The Daily Nation, 31 October 2008), the question becomes pertinent. Earlier in the year I wrote in this blog about Demystifying ODM (see below) because I believed that ODM was taking Kenyans for a ride with their pro-masses and pro-people rhetoric – “ODM has camouflaged its anti-masses agenda through leftist and popular rhetoric”, I wrote. But I found an appropriate article debunking ODM myth by Mukoma wa Ngugi “Understanding the Kenyan Opposition”. If you have not read that article and you want to understand who owns ODM you better do so now.

Coming back to who controls ODM, the rejection of Waki report answers the question. Ngugi identified three forces in work in ODM.

“Within the opposition leadership (or the Pentagon as they refer to themselves), there are at least three competing elements -- the activist-intellectual left, the Moi-ist retrogressives, and the populists, he wrote.”

It is now clear as daylight that the populist faction led by the Prime Minister Raila Odinga does not control ODM. Others in this group may be Musalia Mudavadi and James Orengo. Raila does not also seem to have the control of the Luo Members of Parliament as one would think. They defied him for supporting the implementation of the Waki report and even purported to gag him from speaking out on national issues. The Standard 31 October 2008 wrote:

“Nyanza MPs have asked Prime Minister Raila Odinga to consult his ODM colleagues before commenting on sensitive national issues. The MPs also told Cabinet ministers Anyang’ Nyong’o and James Orengo to be careful while contributing to political issues. Sources at a meeting held at Jaramogi Oginga Odinga Centre said the 14 MPs also cautioned the PM over his position on the Mau Forest. "We asked him to be careful with political issues, which we felt may not augur well for his political future," said an MP, who attended the meeting. The MPs told the PM to his face they would not tolerate any more outbursts from him. "We sought to know from him, what interest he had on the Waki Report or Mau Forest to go the extent of committing political suicide while there are ministers supposed to handle the issues," the source said.”

Even the maverick James Orengo was made to eat his own words.

The stormy meeting saw Mr Orengo withdraw and apologise over remarks he had made that those named in the list should carry their own crosses.

The activist-intellectual left led by Anyang’ Nyong'o does not too control ODM. Nyong'o has not made his position on the Waki report known so far. His colleague, with whom they led this faction during the pre- and post-election, Salim Lone has since quit his job as the adviser of the Prime Minister. Perhaps he realised that the owners of ODM were about to claim its control and made an early exit.

That leaves us with the Moi-ist retrogressives. For all practical purposes this is the faction controlling ODM. It is led by William Ruto and William Ole Ntimama. This is the group where those allegedly involved in past and the recent impunity congregate. Ruto, Ntimama, Henry Kosgey and Fred Ngumo were the first out to trash the Waki report in the ODM. They have now enlisted most of ODM politicians especially MPs. Most of the MPs in ODM belonged to the past Moi era and part of his regimes impunity. It is not surprising now that they are taking control of ODM to shield the impunity. They have even the impunity to declare that they will protect those on the secret list.

“ODM on Thursday rejected the Waki report on post-election violence as its leaders said they would resist attempts to charge any of those named in a secret list of suspected perpetrators.” The Daily Nation 31 October 2008.

By the time of writing PNU has yet to issue its official stand on the Waki report. When they do then we will know who owns PNU too. But from their utterances it is not difficult to tell. We, however, give them the benefit of doubt for now until they state their official position.

The Waki report belongs to the people of Kenya and international community not the politicians who are part of the impunity. The politicians have been taking the people for granted. They unleash impunity and declare themselves innocent. It is time to reject all politicians who reject the Waki report. The people should support implementation of the report and refuse to be divided on ethnic lines by the politicians. The international community should now know all Kenyan politicians are the same and support the people of Kenya in bringing those in the secret list to the International Criminal Court.

This is the time for the civil society, religious faiths and all people of Kenya to stand together against the monster of impunity. Don’t fall prey to the divisive tactics of the politicians this time round. It is time to demand Justice.

Kibaki and Raila Should take a Retreat Urgently

2008-10-26T10:54:00.002+01:00

Kriegler and Waki reports are a damning audit of Kenyan leadership, institutions and society. According to the reports, leadership and institutions in every sector of the society were culpable for the political and moral decadence that led to the pre-election and post-election violence. The reports unanimous conclusion is that the culture of lawlessness, disregard of rule of law and impunity in society, is to blame. The reckless culture was exhibited by the top most State executives down the hierarchy to the ordinary persons.

The report by Kriegler went further and stated that even a new constitution may not solve the problem which basically is cultural in nature. It demanded a head on, no nonsense approach to deal with the lawlessness and impunity. Waki report reiterated the same and offered a prescription for dealing with the problem through establishment of a special tribunal to investigate and prosecute those bearing greatest responsibility in the matter. In addition, both reports recommended a complete legal and institutional overhaul and reform to ensure transparency and accountability.

The task ahead is enormous and requires creativity, honesty and forthrightness. The national behavior of pointing fingers, blame and burying the head in the sand will not do this time. There is no single institution that with moral authority left to suggest others are to blame. The entire country should stop and examine itself as cosmetic solutions are not appropriate. The country needs long lasting and sustainable legislative and institutional solutions.

When the leadership and institutional credibility in the society is questionable, hope for restoration and renewal resides in the highest authority in the country. The President and the Prime Minister are the highest authorities in the country as leaders of the government of coalition. During the post-election crisis the country trusted Kibaki and Raila to rise to the occasion and end the violence. They did. Now again the society expects them to show leadership and restore the dignity and respectability of the nation.

The grave conclusions by the two reports should have made the two leaders to go to a close door retreat urgently in order to discuss the reports and come out with a blueprint on the way ahead. The compromised Cabinet and Parliament might not have the faith of the people to do this. Their role currently, until they are also reformed, should be to give administrative and legal effect to the decisions of the principals. That is an indication of the level and extent of decay in the national institutions and society.

The modus operandi here my sound dictatorial, but during institutional crisis, as the one the country is facing now, a singular and purposive direction is required. Taking a leaf from the prevailing international financial crisis, the big capitalist countries’ leadership moved very fast, without any delay, to arrest the situation. The way they did it cannot be said to be democratic. Decisions were made by the top most government executive authorities and were presented to their institutions for administrative and legal authorization. Less is expected in Kenya now.

Demystifying ODM

2008-02-18T00:21:00.001+01:00

I have always wanted to write a piece debunking ODM, one of the main protagonists in the Kenyan political crisis. There is a perception that ODM represents the aspiration of the oppressed masses while its antagonist PNU represents the oppressive State elite and apparatus. Nothing is far from the truth. My frustration is that ODM has camouflaged its anti-masses agenda through leftist and popular rhetoric. Consequently, an exposure of the different elements and interests in ODM is necessary if one is to understand the true nature of the crisis facing the country. A solution which is not informed by a clear understanding of the protagonists will only lead to bungled results.

Luckily, I do not have to write that piece myself because Mukoma wa Ngugi in her article “Understanding the Kenyan Opposition” has just done that. Ngugi’s analysis is very instructive and necessary reading for all who seem to give their advice on the way forward in Kenya. It is especially apt for the international community who seem not to understand what is playing out in Kenya. ODM like its counterpart the PNU is a gathering of pretenders, leftist activists, war-lords, and populists.

I strongly feel that any solution that does not hinge on advancing Kenya’s democratic and rule of law tradition as well as diversity and cohesiveness will play into the hands of these pretenders.

Read Mukoma wa Ngugi’s article here:

Kenyans were duped in the 2005 Constitutional Referendum!

2008-02-07T12:23:00.000+01:00

(This is a longer version of an article published in "Business Daily Africa", Nairobi on 8 February 2008, under the title "Democracy comes in steps not a leap".)

Could a ‘Yes Win’ in the 2005 Referendum have saved Kenya from violence, killings and mayhem? I know that this may be an unorthodox question to ask currently but in times of crisis one needs to take the less travelled road in search for answers. Both the proponents and opponents of the 2005 draft constitution (Wako draft) agreed that it was not 100 per cent perfect. They conceded that there were some contentious issues that required to be worked out. The estimates were that the draft was 80 per cent good or better than the current constitution. But instead of focusing on what united both sides, the divisive 20 per cent became the focal point. The result was the rejection of the draft and a stalemate.

Since then, political life in Kenya has been characterised by this stalemate and the current standoff is its culmination. The confrontation has reached its apex and a climb down by all parties is necessary.

I think that there are lessons to aid them from the 2005 referendum.

The first lesson is that there are no perfect constitutions and a perfect constitution may not always work in practice. Constitutions are shaped by political and social-economic factors of the time. A perfect constitution remains an ideal and utopia to be achieved. The 2002 draft constitution (Bomas draft) is such an ideal. The referendum (Wako) draft was a major step to the ideal. It resonates with the saying that ‘if you want to land on the moon aim at the stars’.

The second lesson is that democracy is incremental. If in 1992 Kenyans had rejected the amendment to the constitution to reintroduce multiparty politics the democratic opening in the society then could not have been achieved. Similarly, if the 1997 inter-parties compromise had not been embraced by both sides the success of 2002 election could not have been possible. These were not perfect solutions but they advanced democracy, democratic institutions and society in general. In fact, the past five years was a period that the country enjoyed most freedoms in the history of the nation’s independence.

The rejection of the 2005 draft constitution denied the society and democracy an opportunity to advance. It rejected a Bill of Rights which was far superior to the rights and freedoms in protected in the current constitution.

More significantly, the draft constitution contained advanced provisions on matters core to the current political crisis and which could have steered the country out of the impasse. These provisions were similar if not verbatim to the Boma’s draft. I draw attention to a few key provisions below.

The Wako draft contains an important provision on a fair election Article 101(e). According to the provision a fair election means:-
1) free from violence, intimidation, improper influence and corruption,
2) conducted by an independent body,
3) administered in an impartial, neutral, transparent, accurate, efficient and accountable manner.
The provision would have been crucial in determining whether the 2007 election was fair and free.

The independent body referred to above is the electoral commission. Article 109 of the Wako draft establishes the electoral and boundaries commission and stipulates its functions, duties and powers among them the efficient conduct of elections and referenda. Under Article 273, the composition of constitutional commissions, which the electoral and boundaries commission is, members are to be appointed by the president with approval of parliament. This provision reduced the powers of the president as is contained in the current law where the appointment of the members is the sole prerogative of the president. Under the Wako draft constitutional commission are independent and not subject to direction and control by any person or authority and shall be impartial and perform their functions without fear, favour or prejudice.

The judiciary has come under a ferocious criticism from the opposition as a Kibaki instrument, stacked with his own political appointees. The current constitution gives the president the exclusive powers to appoint the chief justice. As regards the judges the president appoints them under recommendation of the judicial service commission. As such, the president has the final say in the appointment. But whether the judges are under his direction is another question as they enjoy tenure of office which limits the powers of the president to sack them. Under the Wako draft, the president appoints the judges under the advice of the judicial service commission and the approval of the parliament. In this arrangement, the power to appoint the judges is shared between the president and the parliament. Judges appointed under this procedure are deemed impartial and independent because they are not direct appointees of the executive. It is probable that if the Wako draft had been approved, the lack of confidence in the judiciary could not have arisen and the election dispute could have been referred to the court for arbitration. The Wako draft is similar to the Boma’s Draft on this issue.

The swift swearing in of the president after being declared the winner of the 2007 election by the electoral commission was criticised although it was not illegal under the current laws. The Wako draft, however, had a provision that could have cured the anomaly by prescribing an orderly transition after the election. Under Article 151 of the Wako draft on assumption of office of president, the president assumes office a) on the first Tuesday following the twenty one days after the date of the announcement of the results of the presidential election by the Electoral and Boundaries Commission; or b) within seven days of the determination by the Supreme Court of the election petition filed under Article 150. Article 150 provides the procedure to follow in filing a petition objecting to the validity of election of the president-elect. The petition shall be filed within seven days after the date of the announcement of the results of the presidential election by the Electoral and Boundaries Commission. The Supreme Court shall, within seven days of the filing, determine the petition.

The provisions on transition after the election stipulated in the Wako draft could have avoided the clumsy manner in which the swearing in of the president-elect was done. The draft clearly stipulates the time frame of events leading to assumption of office by the president-elect which allows for orderly transition and for disposing off any legal challenge to the validity of his or her election. The Wako draft provision was far superior to the Boma’s draft that did not give timeframe to events leading to assumption of office by the president-elect. The Boma’s draft states that the person elect assumes the office of the president ‘… on the date when the term of office of the incumbent President ends’. The provision is vague and does not take into consideration any legal challenge that may be mounted.

Finally, Wako draft and Boma’s draft had similar provisions on the procedure at presidential election in Article 149 and Article 157 respectively. These provisions lay down the procedure in case a re-run of presidential election was necessary. Article 149 (4) states that ‘the candidate for President who receives more than fifty per cent of all the votes cast in the election and who, in addition, receives a minimum of twenty-five per cent of the votes cast in more than half of the districts shall be declared elected as the President.’ Article 149 (4) says further that, If a candidate is not elected, a fresh election shall be held within twenty-one days of the previous election and in that fresh election, the only candidates shall be – (a) the candidate who received the greatest number of votes; and (b) the candidate who received the second greatest number of votes, and the candidate who receives the greater number of votes shall be declared elected as President.

It is abundantly clear that this provision was a saving clause in case no candidate garnered the required fifty per cent votes. In the current stalemate both Kibaki and Odinga did not meet this required and a re-run would have been the option rather than the current legal vacuum.

In short, there were many positive democratic victories that were lost when the baby was thrown out with the bath water in the 2005 referendum. Political expediency rather than national interests dictated the choices fed to the populace by the political elite and civil society. Simply put Kenyans were duped in the 2007 referendum that the Wako draft constitution was no good and should be rejected. That decision has come to haunt the nation with dreadful consequences. In hindsight, Kenyans should approach the current dialogue with an open mind and should not reject major victories because the whole battle is not won.

Preserve the energy for future victories not war and mayhem.

Related Views:

NJOKI NDUNGU'S WITNESS SUBMISSION TO US CONGRESS

"Further, politicking and posturing on narrow agendas, such as the contentious MOU[4], rather than focusing on national interest, led to the rejection by oblivious Kenyans of the new draft Constitution in 2005, who threw away its proposed new structures for power sharing between a President and Prime Minister, the reduction of presidential powers, increased parliamentary vetting of public appointments and institutions to deal with the land question, devolution of resources, and addressing the inequalities of the marginalized.

If that Constitution was in place, the tragedy of the last few weeks would have been avoided."

Read full Submission here

Kenya: The Way Forward! Is this It?

2008-01-30T15:28:00.000+01:00

Below is an extract of a full report by African Policy Institute on the Kenyan election and ensuing mayhem and violence: Breaking Kenya’s Impasse: Chaos or Courts? It confirms what this blog (below) has advocated as the only viable way out of the political and democratic impasse in the country.

Here is their conclusion. But you can get the full text of the report here.

Conclusion
Kenya is facing perhaps the most profound test of its stability and institutions as it moves into its fifth election cycle. The 2007 election has ended in a dispute. The role of international mediators and wellwishers like Desmond Tutu, John Kufor and Kofi Annan who have played a pivotal role in trying to break the impasse and normalize the situation, but the crisis persists. But while their role is a welcome gesture of good will to the people of Kenya, overstretching mediation may permanently erode the credibility of Kenya’s established courts and other arbitration institutions which Kenya’s people have painfully nurtured for the last 44 years. What has come to be called the Kenyan crisis is a perfectly normal situation that from time to time confronts in democratic systems. It should never be likened to ‘political crises’ in other parts of Africa like Somalia or Darfur-although Kenya may get there if this is not addressed expediently.

Rather, what Kenya is witnessing is an election dispute like the one that engulfed America in 2000 when the Democratic and Republican party candidates disagreed on the process and results. While elders like Jimmy Carter and James Baker were called by both sides to cool tempers, all parties to the dispute were agreed that the court system—with all its faults, including partisan and ideological interests--was the way to go. Kenya will have many more disputed elections 200 years today. No matter how compromised the court system may be, it is still the only credible and sustainable arbitration mechanisms open to, and ever invested by, civilized societies.

Kenya needs the courts to suggest the way forward, not mediators to broker transient deals and power pacts among powerful elites. Certainly, chaos in all its guises is never the way out. Kenya must now return to reason. The opposition should stop all its mass action because it can only produce another disputed, and possibly dictatorial, regime. The government should guarantee that the dispute will be dealt with within reasonable time—no more than three months. It might be necessary to call in judges from other commonwealth countries to provide the necessary neutrality and restore the confidence of the parties to the dispute in the courts. Finally, all parties must be prepared to honor the final verdict of the courts: a recount, a re-run, or a victory of either of the parties.

The role of the court should be supported by national mediators and the media who have to do the spade work in reconciling communities torn by violent conflict and calming the nation. The national healing process must of necessity involve the resuscitation of Kenya’s multi-ethnic vision based on civic rather than ethnic citizenship, sanctity of law and public order and the courts as the supreme arbiter in all disputes, including election ones.

Full text report here!

A Bleeding Kenya: Why did this not happen sooner?

2008-01-14T14:55:00.000+01:00

Since the atrocities of ethnic violence, mayhem and senseless killings befell our beloved country both in the run up to the December election and soon after the declarations of the flawed presidential election result, I have been following commentaries and opinions in print and electronic media. Despite many opinions and explanations as to the genesis of the quandary the nation found itself in the aftermath of the election, none seems to explicate the pertinent issue. Why did this not happen sooner? Calorine Elkins asked this question in her opinion “Ethnic woes a legacy of colonialists’ power” the Standard 7 January 2008. Unfortunately, even Elkins could not answer the question. Her colonialist hypothesis did not explain why Kenya has remained an island or oasis of peace in an armed conflict turbulent region. In order to understand the current political impasse and the violence and mayhem, it is imperative to answer this question adequately.

First let me characterise the current political stand off in the country in terms of “two centres of political power”. The antagonists of the two centres of power are Mwai Kibaki and Raila Odinga supported by their (ethnic) political bases. The ended election was supposed to decide the rivalry between the two centres, which strongly emerged after the 2002 elections and continued to date, but it failed and instead bequeathed two equally strong centres. The country is therefore spilt in the middle with both opponents enjoying at least 4 million strong votes support. The stand off has trashed the façade of peace and tranquillity hitherto existing in the country. How therefore can this phenomenon be understood? Why did peace and tranquillity in the country disappear so suddenly? To understand this, interrogation of how the past regimes maintained the relative peace and stability is needed.

The answer to the question may recline to how the first president Jomo Kenyatta and his successor Daniel Arap Moi dealt with alternative centres of power during their reigns. Both never allowed alternative centres of power to flourish and blossom. They vanquished them in the bud. Various methods were used such as political persuasion (KADU 1964), snap elections when their enemies were weakest (little election 1966 and snap election 1983), detention without trial, imprisonment under trumped up charges, brutal force and assassinations (Tom Mboya, J. M. Kariuki and Robert Ouko). Most of these techniques were undemocratic, illegal and a travesty of justice and human rights. But they sustained these regimes in power and the ‘apparent’ peace and tranquillity in the country during their reign. Their actions must, however, be understood in their historical and political context namely one-party state either de jure or de facto. Under those circumstances, the two presidents wielded absolute political power which they used to vanquish any challenge. But what is important to note also is that they did not allow any competitive elections except when their adversary was at his weakest. The last constitutional terms of Moi are the exception but even during the 1992 and 1997 elections the opposition was divided and could not pose a strong centre of power to his presidency. In 2002, Moi did not contest the election because he was constitutionally barred. On the other hand, the opposition managed to unite and fathom out an alternative centre of power which went ahead to vanquish Uhuru Kenyatta, Moi’s appointed follower, and KANU dominance.

After 2002 a new centre of power emerged and Kibaki was not able to snap it in the bud. This explains the constitutional impasse and parliamentary stalemate (though through government of national unity Kibaki was able to circumvent through the deadlock) and the current stand off where Kibaki met a powerful adversary at the election something his predecessor never permitted. Kibaki did not avail himself the illegal measures used by his predecessors perhaps because of the multiparty democracy and human rights context he operated in.

So what is the way forward?

In a dictatorship, peace and tranquillity is maintained through brutal force and unlawful means. In a democracy, it is maintained through democratic institutions. The choice facing the country now is between dictatorship or democracy. If Kenya is a democracy, the solution to the impasse must be informed by the country’s democratic, political and legal institutions and not violence, killings and political mayhem.

After the Election Commission of Kenya declared Kibaki the ‘winner’ of the presidential election, no matter how flawed the elections were, the stability of the country rests on its other institutions despite their perceived shortcomings. They must be allowed to shoulder the responsibility they are entrusted with by the law. They must be tested, as perfect institutions do not exist. Strong institutions are created and tempered by crisis. To trash what there is aside is to create a dangerous precedent where any politician and political centre will choose the institutions to be subjected to and which to ignore and discredit.

Whereas foreign mediation may appear an easy way out of the current political crisis, ultimately it is the national institutions that will guarantee rule of law and democracy. Foreign mediation if resulted to must work within the framework of the existing national institutions without circumventing them. At the same time, any party with the interest of the country at heart must permit the national institutions to resolve the political deadlock so that the country and its seemingly bungled democracy can emerge stronger. To embrace democracy is to accept its shortcomings but also to learn from them so as to advance to a higher level of democracy.

Related Views:

Why court is the best solution in poll result row.

Strong institutions our only way out.

President Kibaki Tells Voters to Elect Corruption Free Leaders

2007-12-12T14:20:00.000+01:00

President Kibaki is the first presidential candidate to appeal directly to voters to elect corruption free leaders in the coming election. He did this during his speech to the nation. We in this blog would like to commend him for his bravely as most politicians keep silent on this issue. We have argued all through that the best way to get rid of corruption is to elect leaders free from corruption, at all levels and especially in the Parliament, and lock-out the corrupt from public office. On his part, the President solemnly promises not to appoint corrupt persons in his cabinet if elected for a second term. This is an assurance the voters need from all the presidential candidates. If this were to happen, and the voters were to elect only clean leaders, corruption would be dealt a devastating blow.

Read the excerpt from Presidential Speech on corruption below.

In the last five years, my Government has made credible progress in the fight against corruption and economic crimes.

We now know that fighting the vice requires more than prosecuting or jailing those who are convicted. It is about changing attitudes, values and ethics of an entire society, and to ensure that the rules and regulations are observed and enforced so that corruption becomes socially costly. It is about ensuring that those who commit crimes pay for their actions, instead of hiding and mobilizing behind their communities.

Indeed, the fight against corruption is about the people of Kenya electing to Parliament and local authorities, men and women of integrity. This is why we have worked so hard to create a legal and institutional framework to ensure that future generations of Kenyans will enjoy prudent and accountable governance.

When you go to the polls on 27th December, I urge you to vote for leaders who are fit for public office and with no record of engaging in corrupt practices.

On my part, I make this specific commitment to you; I will appoint a CLEAN HANDS cabinet, made up of men and women of integrity from among the decent men and women that you will elect.

I shall demand that any minister who comes under reasonable suspicion of engaging in corrupt practices, resigns immediately. They will be reinstated only once the matter has been investigated and their name has been cleared.

I will insist on this provision being enforced in all circumstances. We will have a Clean Hands Government. This is a necessary measure to restore confidence in our politics and uphold the trust that Kenyans place in their Government.

The President have shown the way. He wants clean leaders in the next term. Voters go ahead and give him or the next President of the Republic of Kenya CLEAN HAND LEADERS. Show the corrupt the Red Corruption Card! With your vote you can do Kenya, yourself and posterity a patriotic service.

On 27 December 2007 Remember to VOTE FOR CORRUPTION FREE KENYA!

TUMECHOKA - We are Tired! Kenya Youth Sing!

2007-11-28T23:26:00.000+01:00

We predicted that corruption would be a key issue in 2007 election. The youth of Kenya have heeded the call to uproot corruption once for all. The recent party nomination saw Kenyans give many MPs the political red card and underscored the last parliament as a corrupt institution which needed cleansing. Come election on 27 December many more former MPs will fall. The youth of Kenya have at last said TUMECHOKA - We are Tired.

TUMECHOKA (We are Tired!) expresses a rage felt by Kenyan youth at the abuse of power by our leaders and especially the Parliamentarians of the outgoing 9th Parliament. This music video was financed and produced by Kenyan youth and is powerful social commentary. If only the leaders understood rap! Could this be the next Kenyan political anthem? The artists want you to download and play this video (loud!). It’s free and the artists have waived their royalty rights for internet download and radio play. Tell your friends about it – and note the call to youth to use their vote to elect a corruption free leadership for Kenya. We think this may be an idea whose time has come. Enjoy!

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Intro
Sisi sote tumekuja pamoja kusema Na kuskika, hatunyamazi mashida zetu Kama kitambo,
(We have come to speak in one voice, we will not be silenced as before)
A voice against our leaders, ni kura itaongea, pigeni kura pigeni kura pigeni kura..
(Our vote will speak, Vote people Vote! Vote!)
Baken
Nashindwa niajee, kuishi kiwasi wasi nitaongea ki wazi wazi viongozi vikohozi
(Why are we living in fear with leaders who make us sick)
Na niajee, Mtaani tunawika nayeye anacheka straight to the bank,
(Why are we living in ghettos as our leaders laugh straight to the bank)
Mi na hustle ye ana manga bila hata kungangana, kwanini akuhonge baadaye akunyonge
(I have to hustle, he enjoys without labouring, why should he bribe us, later he hangs us)
Kamba shingoni ya kujitia mwenyewe, wanajifanya waelewi kula kuva
(A noose around his neck this time, he thinks he is better than us)
Yote C.D.F na round hi, Shida zetu tunyazmazi.
(This time let us end our problem)

Chorus
Tumechoka na sema tumechoka kufinyiliwa down tunasema tumechoka (tumechoka) x 4
(We are tired of being pressed down - We are Tired! x 4)

Leftie
Mshahara tunampa, na kazi hatuoni, pesa zetu mnakula na bunge mnalala,
(We pay you well but your work is unseen. You eat our money and sleep in Parliament)
Mnasema mko kazi Ndio sisi wenye vipaji, vitambi vinatokea ungedhania Ni kiriba,
(You claim to be hard at work)
Tunafinywa Kwa makini, laini shinda maini maazi kufanyiziwa
(We are oppressed)
Malazi kufinyiliwa, wanadai in the ghetto na nyimnaangalia nimekula huu usongo
(In our homes we are oppressed they say in the ghetto)
Ndio maana ninalia, nakaa hamtawacha kura yangu hamta pata, this time mkicheza tutampiga
(This is why I am crying. No vote for you from me this time.)
hiyo marando, taadhari tafakari Leftie akiwa nare mtakuwa kwenye hatari tunataka maendeleo, hacheni huo ukorofi,
(Watch yourself I am getting impatient. We want development not corruption.)

Chorus
Tumechoka na sema tumechoka kufinyiliwa down tunasema tumechoka (tumechoka) x 4
(We are tired of being pressed down - We are Tired! x 4)

Hawkins
Followed my heart through all the roads into the jungle, seen so much pressure
Told my body, just handle, this is nothing, Compared to what we thought,
Bad governance and leadership is what we fought, dark ages, black pages, rough ages
Men make history but this is to much, I earn all the money but you say I can’t touch, unajiongezea Mshahara nikipinga unanipiga, si protest Kwa Street Ndio maana niko Kwa beat nakuonya roundi hii nakutoa wewe shindwa
(You increase your salary when I protest you have me beaten – I am warning you now this time I will throw you out!)

Chorus (repeat)
(We are tired of being pressed down - We are Tired! x 4)

Jahfarel
Nabado wamesahau tumewapa hii works, Kulounge bila shukrani hatowi pesa zao
(They have forgotten that we are their employers, they are greedy and laze about)
Dem lying dem saying but they just destroying with false prophesies of a better tomorrow,
(They are false prophets and liars)
Na hii wakati, Ni Kura itaongea pigeni Kura pigeni Kura
(This is the time. Our vote will speak. Vote! Vote!)

Ending Chorus
(We are tired of being pressed down - We are Tired! x 4)

Parliament Kills the Only Hope for Fighting Corruption!

2007-09-14T12:10:00.000+02:00

The fight against corruption is tough. Many vested interests attempt to thwart the process at every stage exist, especially during an election year where political powers and individuals try to create alliances with the looters. But when the Parliament kills the only hope for fighting corruption, as it did on 12 September 2007, then the country has lost direction.

By extending blanket amnesty to economic crimes perpetrated prior to 2003 and amending some parts of the legislation establishing the Kenya Anti-corruption Commission (KACC), which gives it powers to investigate those crimes, the parliament dealt a devastating blow to on going and future investigations of Goldenberg, Anglo-leasing and land grabbing cases by the KACC. These corruption scandals involve hundred billions of Kenya shilling stashed in foreign banks abroad. This is public money that could have been used for economic development and alleviating poverty which is prevalent in the country.

Earlier in this blog we had warned that reducing the KACC investigatory powers will be detrimental to the fight against corruption. The KACC has its flaws as regards the fight against corruption as it does not seem to move with the required speed to investigate, apprehend and prosecute those involved in these serious economic crimes. But it is the only body currently equipped and capable to deal with grand corruption investigations. Leaving the matter in the hands of overburdened police to investigate is clear signal that parliament is not interested in pursuing corruption cases.

Let us hope that the President will decline to assent this law and therefore restore the powers of the KACC. The President is the last bastion of hope that the war against corruption will continue as he is on record for having declared zero tolerance to corruption. Parliament, which is composed of some members who are seriously implicated in the grand economic theft, had its own motivation for granting the looters amnesty. The President once again should stand against the Parliament as he did with the Media law.

Lastly but not least, the voters should take cue from parliament and make sure that these selfish lot does not return to the august house. This parliament has tested elector’s patience to the extreme with its egotistic legislations and impunity to public and national interest. They have increased their salaries and other pecks without regard to the poverty and financial hardships faced by majority of the population. To nail it all, they have shown gross contempt to the fight against corruption by granting themselves amnesty. The time to show the corrupt lawmakers the door is now.

KACC Has Made Remarkable Achievements LSK New Boss!

2007-03-31T02:08:00.000+02:00

The new charman of Law Society of Kenya (LSK), Mr Okong’o Omogeni, has commended the Kenya Anticoruption Commission achievements in dealing with corruption. He said that in the former regime, former powerful ministers, permanent secretaries and even the Central Bank governors could not face the law.

Currently, there are a number of cases pending in courts against highly placed personalities among them permanent secretaries, a Central Bank of Kenya (CBK) governor and deputy governors, a former security intelligence boss, directors and managers of government corporation among others. In addition, on 29 March 2007, five senior civil servants were arraigned in court by the KACC. They include former Central Bank of Kenya deputy governor Eliphaz Riungu, former Commissioner of mines Collins Owayo, former CBK chief dealers Michael Wanjihia and Job Kilach and former permanent secretary Finance Wilfred Koinange.

Coming from the head of the lawyers’ organisation in Kenya, the praise of KACC is really sweet music as the commission has been blamed for incompetence. Recognition of the work done by KACC boosts its image as it has been in the receiving end of criticism especially from opposition politicians and civil society for the most time of its short life. In fact, the LSK boss would like the powers of the KACC to be extended to include prosecution of cases it investigates in order to forestall conflict with the powers of the Attorney General who is responsible for prosecutions. In the past, the KACC has investigated cases but on recommendation to prosecute to the AG the latter has return the files to the KACC requiring further investigation.

In order for the KACC to effectively do its work, it requires independence from other organs of state including the AG office. KACC should be given a free hand to investigate and prosecute cases. The current delay in prosecution of corruption cases can rightly be attributed to the allocation of powers to investigate to KACC and the prosecution powers to the AG. In this blog we have clearly supported the work done by the KACC and called for non-interference by other governance organs especially politicians. We believe strong and effective institution cannot flourish if their work is muddled with.

KACC Launches Anonymous Reporting System

2007-03-26T17:04:00.000+02:00

In its accelerated efforts to curb corruption and implement the Whistle Blower Protection Act, the Kenya Anticorruption Commission (KACC) has launched an anonymous reporting system. The system uses the worldwide recognised whistle blower system by the Business Keeper Monitoring System (BKMS®). The implementation of the system is a big plus for the war against corruption.

The system guarantees potential whistle blowers anonymity and information confidentiality. The identity of the whistle blower is hidden and the report made remains confidential as it can only be accessed by KACC officials. The system further assures the whistle blower anonymous dialogue with KACC officials. This system is in use at the state office of criminal investigations in Germany and in 29 countries for the German Telekom among other organizations.

The KACC in its website gives guidance on making a corruption report. There are many other possible ways of making a report such as doing so in person, by telephone (Hot line) and/or fax, by mail, and by email report@integrity.go.ke. But the anonymous system is a good improvement and may attract many persons who may have shied before from making a report.
In this blog we support all efforts that make the war against corruption realisable.

Powerful Individuals Involved in Corruption want KACC Powers Curtailed!

2007-03-22T13:48:00.000+01:00

An intense battle aimed at curtailing the powers of the Kenya Antcorruption Commission is going on between the leader of the Parliamentary Committee on Administration of Justice and Legal Affairs Hon. Paul Muite and the Commission's Director Justice Aaron Ringera. Muite wants the Anti-Corruption and Economic Crimes Act (ACECA) of 2003, which established the Commission amended. Muite is calling for the Parliament, to specifically amend Sections 26, 27 and 28 of the ACECA which are KACC’s main operational laws that enables it to make anyone declare their wealth and also explain how they acquired it. Under these sections the KACC can also force anyone it suspects to be corrupt to provide written statements of their property and obtain records and information to enable criminal investigation to be carried out on the suspected individual.

Justice Aaron Ringera, however, accuses Parliament of plotting to stall the functions and operations of the commission by effecting the said changes. Ringera also maintains that the proposed amendments are a conspiracy by powerful individuals implicated in corruption to block KACC from investigating them. Ringera has also faulted Kenyan laws which he said have gaps that must be improved to make the work of his Commission easier.

Muite has represented individuals affected by these powers of the Commission. Former Cabinet Minister Chris Murungaru was represented by Muite after he was fired following his alleged involvement in Anglo Leasing scandal two years ago and the KACC using these powers required him to explain how he acquired his enormous wealth. Paul Muite termed the powerful sections as unconstitutional and illegal saying they violated the constitutional right to remain silent before one is proven otherwise.

Ringera and the Commission have received support from Francis Atwoli, the Secretary - General of the Central Organisation of Trade Unions (COTU) who also sits in the KACC Board. Atwoli threatens to resign from his position if the amendments are carried out. He urged Parliament not to interfere with the work of KACC. He said, whereas the supremacy of the legislature should be upheld, the same should not be used by individuals involved in corruption and other malpractice to curtail the work and powers of KACC.

Whether the powers accorded the KACC are unconstitutional and interfere with individual right to silence is an interpretation issue and should be addressed by the courts. Muite should not use his influence as the leader of the Parliamentary Committee on Administration of Justice and Legal Affairs to unnecessarily undermine the work and independence of the KACC. He should let the courts establish the necessary jurisprudence in the area. Muite should use his role as defence lawyer to help the courts to establish this jurisprudence and not circumvent the process by rushing to Parliament.

In this Blog we support the work of the KACC and abhor the interference from politicians who would like to see its operations and independence curtailed. We believe democratic institutions take time to develop and operate effectively and therefore too much interference only ends at stifling their growth. Constructive criticism is welcome but one should not hide behind such criticism to destroy the very essence the institutions are built on.

See Also: Move to trim KACC powers is betrayal
National Convention Executive Council (NCEC)is convinced that the current clamour to change the law establishing the Commission is hell bent to protect the powerful politicians incriminated in high level corruption from investigation and prosecution in an election year. Read more ...

Mars Kenya Defends KACC

"Whereas Parliament cannot be bound, and is free to change its mind on provisions of law, we must ask the pointed question what mischief will Mr. Muite’s amendments cure? What public interest is he securing? Or is it a perhaps not a public interest he is concerned with, but rather a private interest? " Read more ...

Corruption Stigma Comes Haunting ODM-Kenya on London Trip!

2007-03-17T13:27:00.000+01:00

Corruption stigma came haunting at least two ODM-Kenya presidential candidates during the failed London trip, planned for the candidates. The British government was not amused by William Ruto visa application to travel to London and going by the reports in Kenya dailies, they refused to grant him a visa. Musila Mudavadi might have foreseen the fate that befell his counterpart Ruto and cleverly declined to be part of the group travelling to London. In this instance, the British government demonstrated its distaste for corruption irrespective which quarter it comes from – the government or the opposition. But has the Kenyans and their leaders inculcated such a dislike for corruption? The few instances below show that this is not the case. We glorify corruption when it involves the leaders, especially those in the opposition.

Firstly, it was disturbing to see the insensitivity by the ODM presidential candidates who had the audacity to claim that they failed to undertake the trip in support of Ruto who was denied a visa. Either this portrays their naivety or the lip service they pay to the war on corruption. At least there is no greatness in showing solidarity with any form of corruption either alleged or proved. They even tried to allege that the Ministry of Justice had a hand in it by leaking a list to the British Embassy in Kenya. The same blame game as always, no taking responsibility. But the Minister of Justice Martha Karua, in her character, could not take this and she responded “if I had done it the list would have been longer”.

Secondly, Kenyans seem to accept “the solidarity with Ruto” explanation by the ODM candidates without any critical reflection. They did not question why leaders would support Ruto or another person on corruption claims. Shouldn’t Kenyans have expected to hear from the leaders “let everyone carry their own cross”? Remember the Murungaru case how he was disowned by all. Are Kenyans so gullible to allow their leaders to easily cheat them on this one?

Thirdly, the media also is guilty of insensitivity to corruption when it does not involve the government. Unlike the critical media we witness, when corruption is from the government quarters – just remember the Murungaru case again – this time round the media conspired to remain silent. Is it that corruption is only serious or distasteful when it involves the government of the day and not those in the yesterdays government? Why double moral standards on the war against corruption by the media?

Fourthly, Raila Odinga tried to explain Rutos corruption charges away to his London audience by invoking rule of law. That is a clever way to handle the issue. But the hypocrisy is clear when the same leader does not give his opponents the same benefit of “innocent until proved guilty”. Rule of law is a sword and it cuts both ways - for Rutos and Murungarus. Again why double moral standards?

Fifthly, even the defender of human rights, Maina Kiai, has not seen it necessary to tell the leaders off, as is his character when the government is involved. The solidarity shown by these leaders is so distasteful to the war against corruption that Maina Kiai or the National Commission for Human Rights s silence is abominable. Again why double moral standards?

As we have stated in this blog, the fight against corruption cannot be won without a clear dislike for it. To fight corruption effectively, we should not condone it at all. It is necessary to reject leaders involved in corruption whether alleged or proved. We should borrow a leaf from the British government and show our distaste for corruption by locking out those with corruption tags from public and elective offices and not support them. In the case above, the society failed to tell Ruto and his counterparts that corruption is not acceptable in the highest office or any other office in the country. In fact, there is a need for a law that clearly bars and bans anyone involved in corruption from running for any public and elective office until the corruption allegations or charges are cleared. The call for minimum reforms should include such a provision or law.

Let Us Consitently Show Our Dislike for Corruption!

2007-03-10T02:19:00.000+01:00

I read the story in the Daily Nation 10 March 2007 by BEATRICE OFWONA by the title "Let us all act now for a better future" with keen interest. The story touched on key issues which we can do to fight decadence in our society. But the one aspect that attracted my attention most is the one on corruption for obvious reason that it resonates with the interest of this blog. She wrote:

"A HUMAN RIGHTS ACTIVIST HAS ADVISED US TO START thinking seriously about not letting corrupt people into our churches and other places of worship; of treating such people whose names have been linked to corrupt deals like the pariahs that they are; of letting them and their families suffer the brunt of our scorn and maybe, just maybe, we might dissuade others of corrupt inclination from engaging in such activities."

This approach to corruption is in line with what this blog advocates. We believe that the fight against corruption can be totally won if citizens show their dislike towards it. The example by Ofwona should be extended to all facets of life not only churches, just as we have called for locking out corrupt politicians from elective and other public offices. The dislike for corruption should be extended to our schools, public offices, hospitals, police force, judiciary, parliament, government, universities, and so on. It is only through a concerted dislike and action against corruption and the corrupt that we can redeem our society from this deadly cancer.

The Controversial KACC Gazette Notice On Githongo Tapes

2007-01-25T16:14:00.000+01:00

Below we reproduce the controversial Kenya Anticorruption Commission Gazette Notice on the John Githongo tapes on alleged Anglo Leasing Scandal cover-up by key Kenya government ministers. The decision has created uproar in the media, opposition and civil society circles. We, however, bring the entire notice to our readers so that they may make their own informed judgement in the matter. As we strongly believe that the rights of all accused persons may they be powerful government officials or lowly common man must be protected and rule of law be followed.

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KACC/FI/INQ./38/2006

Inquiry into allegations by the former Permanent Secretary in the Office of the President in charge of Governance and Ethics to the effect that the former Minister for Justice and Constitutional Affairs and the former Minister for Finance, among others, had interfered with investigations he was undertaking into alleged procurement irregularities into the two contracts awarded to M/S Anglo Leasing Finance Ltd. The contracts were for supply, installation and commissioning of a new passport issuing system by the Department of Immigration, Ministry of Home Affairs and contract for procurement of a CID forensic laboratory by the Office of the President, Investigations revealed that:

the former Permanent Secretary was not an investigator as defined by law for there to exist an offence of interference with investigations. The investigators involved in the matter have denied any kind of interference
the tape recorded conversation which formed the basis of the main allegation of interference is largely unintelligible, and the audible parts depict a conversation in short terse statements whose literal meaning would be a matter of conjecture
the former PS refused to record a formal statement that would be used for purposes of any prosecution and that would explain the many unexplained gaps in the recorded conversation
there is no evidence that would lay a proper basis for the play back and production of the tape recorded evidence in court as required
the lawyer alleged to have given the file of Mr. Joseph Githongo, (the father to the former PS), to the former Minister of Justice and Constitutional Affairs has denied ever giving the Minister such a file.

The investigation did not therefore establish commission of any offence. The file was forwarded to the Attorney General on 6 November 2006 with recommendation for closure. The recommendation was accepted by the Attorney General on 15 January 2007.

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In a new statement the KACC have stated that the alleged new tape released by Githongo on his blog on 23 January 2007 was subject of the above notice and therefore it suffers the same fate as the early tape released to the public in 2005.

It is Githongo's Allegation on Cover-Up that Were Dismissed Says Wako

2007-01-23T13:48:00.000+01:00

In a press statement released by the Attorney General Mr. Amos Wako, it is made clear that only Githongo's allegations on cover-up and interference with investigation were dismissed. The substantive investigations on the scandal are still on and nobody has been vindicated yet. This is in line with the approach we adopted in our commentary "Anglo Leasing: Winners and Losers" below.

Although we had not seen the original Kenya Gazette Notice, we relied on the media report, which seemed confused as to who had been cleared by the AG’s and KACC order. But our understanding was and rightly so that only the interference with investigation allegations was subject matter of the order. We feel that the media misled the public as to the nature of the order. In future, it would be prudent for the media to use journalists with a legal training to report sensitive legal matters in order to avoid confusion and misunderstanding. In this case, they should have reproduced the Kenya Gazette notice for the readers to see what was said rather than merely interpreting it for them.

According to Wako therefore only Kiraitu Murungi and David Mwiraria were subject and cleared of the allegations of interference. Moody Awori was not under investigation on these allegations. But Mwiraria and Awori are still under investigations on the substantive charges of corruption in the scandal. Kiraitu is not under investigations on the substantive corruption charges.

Below are extracts of Wako's Statement

In the last few days, there have been statements in the media insinuating that the Attorney General and the Director of the Kenya Anti Corruption Commission cleared certain personalities from the anglo leasing investigations.

Let me at the outset categorically assure the public that the investigations by Kenya Anti-Corruption Commission into the 18 security contracts (anglo-leasing and anglo-leasing type of projects) are ongoing. There were two sets of investigations arising from the said transactions.

The first category concerns investigations into the substance of the transactions themselves. In relation to that, a total of 18 contracts are under investigations. Two of them involve anglo leasing: forensic laboratory and the passports contracts. The other 16 related to security contracts.

In respect of anglo leasing contracts, substantive investigations were carried out and two cases are already before court. On 3rd october 2006 five files were returned to KACC for further investigations. I have been assured that the investigations into all the security contracts both local and international, are at an advanced stage.

The second category of investigations related to allegations by Mr.Githongo to the effect that certain personalities had interfered with the investigations he was undertaking into alleged procurement irregularities in the two contracts awarded to M/S Anglo Leasing and Finance Ltd. It is these investigations that are the subject of the investigation report released by KACC and published in the Kenya Gazette notice No. 488 of 19th January 2007.

The investigations related to these allegations were undertaken and completed by KACC who after analysis of the evidence and the applicable law, recommended that the inquiry files be closed for insufficiency of evidence.

As required by law, the report and recommendations by KACC were forwarded to me and after due consideration and Independent evaluation of the evidence contained therein, I accepted their conclusions and recommendations.

The reasons for these conclusions are well set out in great detail in the report that has just been published.

For the above reasons, the statements and commentaries appearing in the media to the effect that the Attorney-General and the Director of the Kenya Anti-Corruption Commission (KACC) have cleared certain personalities from suspected complicity in the anglo-leasing or anglo-leasing type projects (security projects) is both misleading and in bad taste.

For the avoidance of doubt, I reiterate that the investigations into all the anglo leasing and security (anglo leasing type) contracts are on going and that no person or entity has been cleared. Once these investigations are completed, the files shall be submitted to me for consideration and directions.

While I understand the concerns and anxiety of the public and their desire to have the investigations concluded, and those involved brought to book, nonetheless, I would appeal to all concerned to ensure that they get their facts correct before making public utterances on matters under investigations.

It should also be understood and appreciated that all those under investigations are entitled to the due process of the law. It is the responsibility of the Attorney General, as the custodian of the law, to ensure that the rights of the public including those under investigations are respected and upheld.

We are a country under the rule of law and accordingly the fight against corruption must and should be fought and won in strict accordance with the due process of the law – a cardinal principle of which is the presumption that a person suspected of crime is innocent until he pleads guilty or is found guilty by a court of law after a fair trial.

Members of the public should desist from making statements which will prejudice the constitutional right to a fair trial in these matters.

Read full Statement Here.

Anglo Leasing: Winners and Loser’s

2007-01-21T15:27:00.000+01:00

The last word in Anglo Leasing scandal has not been spoken, to borrow a Norwegian expression. The exoneration of cabinet minister Kiraitu Murungi, former cabinet minister David Mwiraria and Vice President Moody Awori by the Kenya Anticorruption Commission (KACC) and the Attorney General (AG) from any wrong doing does not bring a closure to the scandal. But it has produced winners and losers in the saga.

The investigations were triggered into action by claims of the runaway former Ethics and Governance PS Mr John Githongo. The AG closed the files on 15 January 2007 on recommendation by the KACC. As the Anglo Leasing case has attracted high political, public and international interest the action by the Kenyan legal institutions was received with mixed emotions. There are those who feel that the institutions have short-circuited the public and the war on corruption and those who regard the action as a victory of rule of law.

The winners in the saga are the suspects, President Kibaki and his government and the legal institutions and rule of law. On the losers’ side are Githongo, opposition politicians and Kenyan people and the war on corruption.

The biggest winners are the suspected persons for being exonerated and being given a new political lease of life. Those who had stepped aside from their ministerial positions can now hope to rejoin the government, and those in the government already will feel vindicated from any wrongdoing. For them this is a triumph of rule of law. Their innocence has been vindicated.

The other winner is Kibaki and his government. His close and loyal lieutenants have been cleared of crime by "independent and impartial" legal institutions. This is especially a triumph for Kibaki because he has all along insisted for concrete evidence before asking him to take any political action such as sacking his cabinet ministers. We can remember that allowing the resignation of his cabinet ministers was not his initiative but was imposed on him by demands from the opposition and the public. Kibaki and his government may regard this a victory of rule of law unless any impropriety and interference with the independence and impartiality of the investigating institutions can be rightly imputed and demonstrated against them. It is also a victory for them against those who have accused Kibaki and his government of inaction. Especially, it is a blow to Githongo's claim that the President did not heed his (Githongo's) advice. The president did not have to do no more than direct the allegations to be investigated and allow the relevant institutions to carry out their work without interference.

KACC especially has been accused for lack of impartiality in the Anglo Leasing cases affecting current government officials. It must have been a difficult decision for the Director, Aaron Ringera to dismiss allegations against his former colleague and legal partner Kiraitu Murungi knowing this could be used against the KACC. That Ringera did this is a bold decision and measures to his no nonsense man character. It was also a daring action by the AG, who is allegedly implicated in the scandal, to accept recommendation to close the cases by the KACC. The two institutions were walking on a tight political and legal balancing rope. For them, they are winners for upholding the law and rule of law instead of popular political expedience as demanded by the public, media and opposition. It is a triumph for democratic and legal institutions against mob justice and trial by the media.

The rule of law is also a winner. In criminal law, Blackstone's formulation (also known as Blackstone's ratio or the Blackstone ratio) is the principle that it is "better that ten guilty persons escape than that one innocent suffer". Commenting on the principle the Wekipidia says that "as a principle of justice, the imperative that the innocent not be abused by the system was generally considered self-evident during the enlightenment era, or any other time liberty was a significant force. Authoritarian governments, on the other hand, tend to lean toward erring on the side of punishment, lest any guilty man escape." It is imperative that the law always guides legal institutions even as public interests are considered. The institutions have a duty to make sure that the guilty person is punished and not the innocent. That is the basis of the cardinal legal principle of the presumption of innocence in criminal trials. In legal matters, there is no room for mob justice. For any unbiased legal mind, the Githongo evidence against Anglo Leasing suspects was lacking. It could not sustain a conviction beyond reasonable doubt. The Law Society of Kenya chairman, Mr Tom Ojienda, has defended KACC saying the evidence produced by Githongo could not secure a conviction. Even before taking a matter to court, it is the duty of the prosecution to ascertain that the evidence relied on establishes a prima facie case. That is, the evidence must be adequate to put the accused person on his or her defence.

Githongo is among the losers in the saga. His allegations against the suspects did not stand the scrutiny of law according to the investigators and the prosecution. It could not establish a prima facie case. This is not to say that a crime was not committed. Githongo has also asserted this in a press statement the Standard 21 January 2007. The question for the investigators and prosecution was did the suspects commit the crime alleged? Were the suspects the culprits? The problem with Githongo’s evidence is that it is based on a conspiracy theory, which alleges that the suspects were hindering investigation on the matter. This could have arisen because he mixed roles. He absconded his legal role of an advisor to the president and instead embarked on self-imposed role of an investigator. In the circumstances, he did not give the institutions endowed with that role time to do their work. As an investigator, he also become the prosecutor and the judge. He fed the President and the public with a conspiracy theory and not concrete evidence. Now Githongo says that Kenyans will soon know the truth on Anglo Leasing contracts. Did he withhold any useful information from the investigators and the public? Was there more facts and evidence than in his report to the President and the public? If that is the case, then he has not been truthful. He is part of the cover-up.

The opposition politicians are also losers. They backed Githongo allegations blindly. They have been demonising the only democratic and legal institution with the competence to investigate the scandal instead of supporting and nurturing them. Political bias has also meant that vengeance rather than justice, drove the politicians. They were more concerned with ouster of the suspects from the government and weakening the authority of the President rather than the proper investigation of the scandal.

But the greatest losers in the saga are the people of Kenya and the war against corruption. The guilty have not been brought to book. They are out there enjoying their ill-gotten wealth. A good advice to Githongo is that, if he has nothing useful to add to the investigations, he should shut up and let Ringera (KACC) and Wako (AG) get the guilty. If they fail, they will be held accountable and not Githongo.

In conclusion, the lesson to learn from the whole saga is that the politicians, the media and the public should put their faith and trust in institutions and not individuals. Now, the focus is on the KACC and the Office of the AG to thoroughly investigate the Anglo Leasing scandal and prosecute those implicated by the evidence. At the end, the nation and the people will hold the two institutions accountable. Meanwhile, there should be no interference with their work from whatever quarters.

Corruption Can be Defeated - Nairobi Town Clerk Shows The Way

2007-01-05T16:29:00.000+01:00

Over the years corruption which had become the way of life in Kenya had effectively reduced the City Capital of Kenya, Nairobi to a failed city. Nothing except corruption seemed to work. The infrastructure was in a devastated state, water taps had dried, gabbage littered all corners of the city and roads were full of giant potholes and impassable. The lack of street lighting had turned the streets to valleys of death and insecurity drove residents to their homes before dark fall and business was restricted to daylight hours only. The buildings were in tatters, both human and vehicle traffic obeyed no rules turning the roads and streets into huge human and vehicle nightmare. At the same time, the City Hall administration was the most corrupt of the lot and nobody seemed to be in-charge.

But all these have changed. And one man is taking all the CREDIT - the new Sherrif in Town, the Town Clerk Mr. John Gakuo.

The consensus is that through his dedication, commitment and hard work the city has been transformed. Kenya News Online Blog praising Gakuo talks of the new look Nairobi "Our capital city has improved in looks and feel over the last two years. The streets have been paved and many roads re-carpeted. Most noticeable are the roads in Eastleigh, Doonholm and South C. There are fewer potholes today and generally, there is a sense of order across town. The town clerk John Gakuo has certainly done his job and should be patted on the back for the effort. The government has invested heavily in infrastructure too. Keep up the good work".

Another blog, Kenyan Entrepreneur asks Who is this guy John Gakuo? It answers itself by saying, he's the Nairobi Town Clerk and every time I scan the Nation newspaper there's somebody praising the good job he is doing.

Recently the Daily Nation 4 January 2007 wrote "Nairobi provides a good example of what can be done in a sustained manner to bring sanity to a council. Getting a strong-willed character like Town Clerk John Gakuo and giving him a free hand to clean the mess in a council has seen the city completely transformed. Most importantly, allowing the systems to work without external interference is the best way to make the council thrive. This is what is required of other urban councils."

The government has also recognised and honoured the good job Gakuo is doing. On 12 December the President Mr Mwai Kibaki awarded him the Moran of the Order of the Burning Spear (MBS) medal for his commitment to service. He said Gakuo's efforts in improving service delivery, corporate governance and the ongoing beautification of the city are commendable. He has ably managed the affairs of the Nairobi City Council with commitment and zeal.

Gakuo is also praised for the transparent and accountable manner he runs the affairs of the city. A look at Nairobi City Website confirms why this man is receiving all the praise. In his message Gakuo gives readers and city residents a summary of what the council under his leadership has done. He says for example, the City of Nairobi is going through a momentous period, where it is faced with the challenge of providing quality services to the fast growing population. However, despite the challenges, the City Council of Nairobi has continued to improve tremendously in service delivery to residents of Nairobi. As most residents would agree, the Council has done quite a lot in restoring the lost glory of Nairobi. But to get the real feel of the happenings you need to read his entire message.

As the Daily Nation has said, other cities and urban council continue to suffer from the effects of mismanagement occasioned by corruption. The problem, however, is not restricted to the councils, numerous other institutions are not performing because of corruption. In a story by Peter Ngare "Wheels of Corruption Ruin Roads" the Daily Nation 4 January 2007, the writer says "rampant corruption in the heavy commercial road transport sub-sector is costing the country billions of shillings in road damage, high cost and loss of lives. Turning a blind eye on overloaded lorries, thanks to fat bribes offered to officers by transport companies."

If one officer like Gakuo can achieve so much, why are others not doing a good job? The answer of course is the calibre and dedication of the officers. Gakuo's success is an eye-opener. Just as we have argued here, the quality of our leaders determines our success or failure. Corrupt leaders cannot bring about success. Leadership both in appointed or elected positions requires clean, dedicated, visionary and hard working people. If we want to succeed we have to choose our leaders carefully and not through tribalism, party lines, friendship, or because someone tells us so. Evaluate what the candidates have done in their previous position no matter how low it was. If a person has not performed as school, church, sports, youth, community, or on other leadership position, he or she should not fool you that they will perform as an MP or councillor. If someone has not performed as an MP there is no way that person will deliver as a President.

In this year of elections our message is Voters be Aware and Vote Wisely.

Witness Protection Law a Good 2007 Start on Corruption

2007-01-02T21:29:00.000+01:00

At the close of 2006 the Kenyan President Mr. Mwai Kibaki gave assent to a new law to protect witnesses. The law meant to protect whistle blowers, especially in economic and corruption scandals, is hailed as the right step on the fight against corruption. But, unless the institutions with powers to investigate, prosecute and try corruption related offences do their work, the law will not achieve its objective of fighting corruption.

The Standard summarises key points saying that, “the law provides for the protection of witnesses in criminal cases including whistle blowers by concealing their identities so as to shield them from victimisation. It establishes a witness protection programme, which would be co-ordinated by the Attorney General on behalf of the police and other law enforcement agencies.

Under the programme, a new identity would be established for the witness and the person and his/her family relocated to guarantee their safety. It vests in the High Court the authority to order the appropriate officer to make new entries in the register of births, deaths or marriages.

The law imposes a sentence of seven years to any person convicted of blowing the cover of an individual who is a beneficiary of the programme. Among them include the nature of the risk posed and whether the witness, in view of his/her background or character, would pose a danger to society if shielded.”

In a situation where whistle blowers risked their lives and livelihood to report incidents of corruption in the public sector, the law was overdue. In 1993, a daring former employee of the Central Bank of Kenya, David Sadera Munyakei, provided Opposition MPs with documents detailing how Sh24 billion was siphoned from CBK in a week in 1993 through the bank’s pre-shipment finance scheme. The case of Munyakei, however, is tragic because he later lost his job and died 13 years later a dejected person. In the absence of this law then, Munyakei was exposed and he could not secure another job because his former employer would not give him a letter of recommendation.

The signing of the law is also seen as a victory for human rights organisations that have long campaigned to have whistleblowers protected by law. The matter, however, got a boost when the Commission of Inquiry into the Goldenberg Affair, recommended the enactment of the law in its report handed to the President early 2006.

Despite Munyeki risking his life and job, he died without those responsible for the scandal being held accountable. None of the culprits have been successfully prosecuted in a court of law. It is important to remind our readers that as important this law is in the fight against corruption, much will not be achieved as the public institutions responsible with investigation, prosecution and trial of corruption are not effective in their work.

The law therefore should shifts focus to the Kenya Anti-Corruption Commission (KAAC), the office of Attorney General and the Courts. These institutions have failed Munyeki and Kenyans in general. The rivalry existing between the KAAC and the office of Attorney General has impeded the prosecution of corruption cases. Instead of co-operation, the two institutions compete against each other hurling accusations and counter-accusations against each other. Recently, the public was treated to a drama where the KAAC had forwarded files of investigation and recommendation to prosecute only for the Attorney General to return them to the KAAC for further investigations. If the two co-operated at the investigation stage, the despicable drama would not have occurred.

To resolve the conflict, the powers of the two institutions should be clearly specified and where co-operation is required, it should be spelt out in the law to avoid misunderstandings. The current situation where the KAAC is responsible for investigation and the office of the Attorney General prosecutions is undesirable and creates unnecessary competition. The remuneration of officers in both institutions is also a source of the rivalry. The KAAC officers earn fat salaries while the pay for officers in the office of Attorney General are meagre. At the same time, those in the office of Attorney General feel superior, according to the law, to KAAC officers.

Even the few cases that reach the courts, they tend to prolong eternally. The accused use the loopholes existing in the law to prolong hearing by bring preliminarily applications and objections. Since the courts are already overburdened with workload the proceedings are not expediently dealt with. Recent changes that brought in strict rules and guidelines requiring judges and magistrates to speedily conclude cases do not seem to bear fruits. The rules require that preliminary objections should be dealt with within 45 days, and thereafter the suits to continue uninterrupted, are not followed by the courts remarked the Minister for Justice and Constitutional Affairs Ms Martha Karua. Notwithstanding the establishment of Special Courts in 2003 to try corruption cases, the delay in the cases is still inordinate.

The courts are in desparation because the human right objections used as delaying tactics cannot just be wished away. A line between individual rights and public interest in speedy conclusion of the cases has to be drawn. The duty to do so lies on the courts and they cannot delegate it.

The fight against corruption is not easy and the prosecution of corruption may not lead to fast and desirable results. Supplementary methods for resolving corruption are required. Karua has suggested a change of attitude and asked the public to join in the fight against graft. She said, "winning the war on corruption is not about the body count of how many people are in jail. What is important is to secure tomorrow and the future as you deal with the past.”

We support Karua’s assertion that change of heart and public participation are the key to eradication of corruption. Although there are many ways to achieve this, we think that education of the voters so as to reject corrupt leaders is the basis of the change of attitude and enlisting public participation.

Corruption Expected to Dominate News in 2007 Again

2006-12-31T13:17:00.000+01:00

As 2006 fades away and 2007 ushers in, the war against corruption in Kenya is still in abeyance. Has the war against corruption been lost? That is the question many will be asking themselves. Since 2007 is an election year, allegations and counter-accusations on corruption are expected to dominate the media and political arena again. As we review the events that shaped the war against corruption in 2006 we expect 2007 will be no different.

As a summary, the year 2006 was characterised by high voltage political rhetoric but very little action to eradicate corruption. Opposition politicians were as usual the most outspoken condemning the government for inaction and spread of corruption among its ranks. Angloleasing scandal was the main corruption baggage the government could not get rid off and it gave President Kibaki’s government the most unwanted label of corruption. The government did not hesitate on its part to throw a few salvos to the opposition politicians reminding them that most of them were suspect in corruption scandals of Moi government especially the Goldenberg scandal and even the new Angloleasing scandal. This culminated with the publishing of the Anglo-Leasing and Kitale Prison Land lists of shame by the government.

The year 2006, however, started with the damning Githongo Angloleasing report, made public internationally in the late 2005 by the author. The report immediately claimed its first casualties when two ministers in the Kibaki government were forced to resign. Kenyan Finance Minister David Mwiraria and the Minister for Justice and Constitutional affairs Kiraitu Mirungi resigned after being linked to the corruption scandal. A third Minister David Murungaru, Minister for Security had been dropped from Kibaki’s government reshuffle after the ill-fated constitutional referendum vote in November 2005. The Anglo Leasing scandal also triggered the suspension of four senior civil servants. But the Vice President who was also implicated refused to budge to resignation calls claiming that he was innocent. Kiraitu has since been reinstated, as the Minister for Energy, after the allegations against him could not be supported by evidence.

The Githogo report also saw members of two public institutions, the Parliamentary Accounts Committee (PAC) led by the Official Leader of the opposition Uhuru Kenyatta and the Kenya Anti-Corruption Commission (KACC) led by the Director Justice Aaron Ringera travel to London to interview the author. The PAC report recommended prosecution of those involved. The KACC proposed charges against some of the culprits but the Attorney General returned the files to KACC for lack of adequate investigation. The year 2006 was also characterised by counter-accusations between the KACC and Attorney Generals office which only contributed to slowing down the resolve to fight corruption.

In the ending year, the investigation by an Inquiry Commission on the longest financial scandal in Kenya, the Goldenberg was handed to the government. The report claimed that the former President Daniel arap Moi must have been aware of a scam which cost some $600m. It also recommended the prosecution of Education Minister George Saitoti – the then finance minister under Mr Moi among other personalities. Saitoti was relieved his ministerial job to pave way for prosecution but he moved very fast to the court and had the prosecution against him dismissed. He has since bee reinstated to the same position an action. The reinstatement has been highly condemned national and internationally. Whether Kibaki's action deserves condemnation, when the court has given its decision, depends on the weight we put on our democratic institutions.

One institution that has been on the spotlight in 2006 is the KACC. It has been accused of impartiality, incompetence and laxity. As a consequence, some opposition leaders had threatened to demonstrate to the Directors office and remove him from office. KACC has countered these accusations by referring to cases, that it has dealt with in its website, which was not available at the time of this writing. A glimpse of site reveals a lot of activities that are not brought to the public awareness by the media or politicians.

The courts have handled a number of court cases against corrupt officials but this has not resonated well with the public. High profile candidates seem to miss from the list of the accused. Kenyans love high drama and therefore they would like to see a couple of Ministers in the dock and sentenced to prison. Whether this will happen in 2007 we wait to see. But the electorate should always remember that they have the power to hire and fire their elected leaders. Use your vote to get rid of corrupt leaders.

We take this opportunity to thank our readers for your confidence in us. We promise to continue giving you incisive commentaries and analysis on corruption the coming year.

WE WISH OUR READERS A HAPPY NEW YEAR - FREE OF CORRUPTION.

Kenyan MPs' Hefty Pay Increases is an Act of Corruption!

2006-12-20T17:16:00.000+01:00

Corruption is a serious indictment to level against our "honourable" MPs especially when the power to award themselves pay hikes is endowed on them by law. The recent pay hike that has aroused public hue and cry was purportedly made under the Statute Bill (Miscellaneous Amendment Act) 2006. It is important therefore to define what we mean by corruption here, so as to place their actions on a proper perspective.

In general life we associate corruption with bribery, kickbacks, or misappropriation of public funds and property. Merriam-Webster online dictionary defines corruption as i) impairment of integrity, virtue, or moral principle ii) inducement to wrong by improper or unlawful means, iii) a departure from the original or from what is pure correct. To what extend can we therefore say that MPs' actions fall within the parameters of this definition?

The first order of business by the current Kenyan Parliament, which was elected on 30 December 2002, was to increase their pay. They voted themselves huge increases in allowances and travelling expenses. Currently, an MP earns a gross salary of over Ksh 800,000. Recently they increased the salary of the President by 300% from Ksh 700,000 to Ksh 3,200,000. At the same time the MPs proposed for themselves a total of Ksh 1,500,000 each as a handshake at the end of the life of the current parliament. The President, however, as a result of pressure from the public has rejected the high pay accorded to him.

It is no doubt that Kenyan MPs, and Ministers are the highest paid politicians in the world. A comparison made with pay of leaders in most developed countries like USA and Britain and some African countries such as South Africa, Nigeria, Tanzania and Uganda by International Jurist Commission - Kenya leaves no doubt to the veracity of this assertion. Furthermore, the high pay compares poorly with the low per capita economic figures in Kenya and the poor performance of the MPs in the parliament. The parliament suffers from chronic lack of quorum, as most MPs do not regularly attend parliamentary sessions. According to the Guardian in 2004 MPs spent 57 days in parliament. Last year their workload was even smaller and only five pieces of legislation were passed. The huge salary awards also compare grimly with the dismal pay Kenyans get in general and the fact that most of the population lives on less than a one US dollar per day.

A recent public survey conducted in Kenya sponsored by the government cited the Parliament as the most corrupt institution. The survey conclusion was based on the general public perception that the hefty increases in pay and emoluments MPs have rewarded themselves in the recent years were unjustified and a blatant abuse of office. The Kenya Times newspaper continues to say that in the case of MPs, the report says, the result could also have been based on the simple expression of general displeasure with the National Assembly or individual MPs based on particular examples of corruption in individual terms. In addition the report said that though MPs are rarely in bribery-demand situations, on the contrary they are alleged to initiate them at least during election campaigns. Others rate the lawmakers as corrupt due to the manner in which they widely buy their way into the National Assembly, the report says. Other factors such as salary levels and the motivation of personnel, the report says, may also have contributed to their lower rankings compared to those of government institutions.

The fact that one is authorised by law to perform certain duties and actions does not imply that the law empowers misuse of that power. What the MPs have done with impunity is to misuse the power granted to them (i.e. to reasonably assess and reward themselves proper pay). They have increased their pay without due regard to the general level of salaries paid to ordinary workers (it does not matter that CEOs and other senior civil servants are paid more, this are not ordinary workers). They have not also taken consideration of the general performance of the economy as well as regard of what other MPs and political leaders earn in the world. Their actions are therefore improper and unlawful. They are also an ethical because they go contrary to the expectation of the majority of the people as the survey above has indicated. The high pay increase is as such a departure from the original and from what is pure correct (reasonable assessment). Furthermore, the high pecks increase is a manifestation of pure greed, which has impaired MPs integrity, virtue and moral principles. It amounts to pure looting and plunder of public resources and economy.

It is not the objective of this Blog to condemn all MPs wholesale. It is, however, the duty of the electorate to thoroughly scrutinise every MP and to ensure that those who fail to pass the test are voted out during the next general election. The electorate has also the sacred duty to salvage the image of the Parliament from a corrupt house to a house of integrity by kicking out the rotten elements. As the ICJ-Kenya has asked "are Kenyans therefore willing to elect leaders who will reduce pay perks for MPs and other senior public servants to a level that our economy can afford?" Moreover, this Blog asks are Kenyans willing to elect persons of integrity who will serve public interest and not MPs’ personal interests first?

Related views
MPs fingured in graft
Vote All MPs Out
Cleric Fury over Kibakis Pay
Kenya Cannot Afford Hefty Salaries for Public Officials
Kenya's Costly Politics - The Guardian

Nobel Peace Price Winner 2006: Elect Clean Leaders to Public Office

2006-12-11T13:23:00.000+01:00

Professor Muhamed Yunus the Nobel Peace Price winner 2006 said in an enclusive interview with CNN Jonthan Mann after the award of the Nobel Peace Medal in Oslo 10 December 2006 that to fight corruption it is necessary to elect clean leaders to public office. He added that electing corrupt leaders worsens the incident of corruption as these leaders will grab more and more at the expense of the people and national interest. It is very important therefore to educate the electorate on how to elect clean leaders and lock out the corrupt. The founder of micro-credit Grameen Bank (Village Bank), which gives small loans to the poor especially women, said that he is dedicating his efforts on education of the electorate rather than running for the office himself.

The Noble Peace Laurent's view on fighting corruption supports the perspective advanced in this blog that the most effective way to eliminate corruption in society is to lock out corrupt leaders from public office during elections. In this way the electorate will be sending clear message to those who hold public offices that corruption does not pay and will not be tolerated.

This blog salutes and congratulates Professor Muhamed Yunus and Grameen Bank for the award of this years Nobel Peace Price and his efforts to fight poverty in his country and the world over as the concept of micro-credit is duplicated in other countries.

Ultimate Power Lies with the Electorate

2006-11-22T00:12:00.000+01:00

By Michael E. Ranneberger: US Ambassador to Kenya. Addressing members of the American Chamber of Commerce in Kenya at a Nairobi hotel 20.11.2006.

Bringing corrupt officials and businesspeople to justice isn’t just about changing the law. It’s about changing behaviour. The 2007 elections are a major opportunity for Kenyans to do just that by insisting that candidates delineate clear proposed courses of action to deal with corruption, tribalism, and the other challenges facing the country. I believe the electoral process in Kenya — under the watchful oversight of an independent Electoral Commission of Kenya — can be conducted in a constructive, transparent manner. Achieving consensus on electoral reforms will make the electoral process more inclusive and participatory.

During the 2007 electoral process, Kenyans will in effect be setting the agenda for the next five years. This can credibly be done only through an inclusive, candid, national dialogue that leads to development of a substantive agenda to move Kenya forward. A credible, fully participatory national electoral process is the key step forward in the fight against corruption and tribalism, and to maintain the positive momentum in Kenya.

In a democracy, the ultimate power lies not with politicians, nor with the international community, nor with the rich and powerful, but with the ordinary people. They get to decide if they are going to allow a leader to remain in office, or to send him into retirement; they get to reward good governance by extending the tenure in office of those who have lived up to their expectations; or they can — quite literally — hand over power to new leaders who have most effectively articulated a vision to which they subscribe.

Read entire speech here

A Country Divided Cannot Win A War

2006-11-20T16:45:00.000+01:00

Abraham Lincoln said a country cannot win a war if divided. Our problem is that our country is divided. There is lack of bipartisanism among our politicians while the issues facing us (insecurity, poverty, constitution making and corruption) call for a united resolve. These are national issues that cannot be defeated if our politicians (government and opposition politicians) are pulling in different directions. Politicians should stop playing hide and seek game with these issues. Unless they stand united we all are going to drown as the country sinks to irredeemable levels.

At least I admire Americans and leaders of other developed countries. They know when to stop partisan politics and stand united to face national threats and issues. I live in Norway and we have gang crimes and security concerns, as well as corruption here too. But what I admire about the politicians here is that they do not play politics with these issues. Both government and opposition stand united, support and pass the necessary policies and laws to fight the menace.

When we look at the Kenya scene what do we see. A government and opposition that cannot agree on anything except their salaries. Recent constitutional negotiations failed because the government wanted a comprehensive constitutional reform and the opposition wanted minimum reforms. There lacked give and take. Couldn't we have both if the parties were committed to success? Similarly, on insecurity the government maintains that it is the work of criminals and the opposition says it is politically motivated without offering proof. The government bans political gatherings until the security is restored and opposition politicians defy this with Kamukunji "prayers". On corruption both parties are living in their own worlds. Both do not see the logs in their own eyes but are busy pointing at each other’s faults. While the country is recovering from economic morass of the last decades, the opposition trashes this by saying that it is a result of drug money and money laundering. After the referendum last year instead of healing both parties recoiled to their political cocoons. The winning party was full of egoism and started issuing ultimatums to the government. You cannot call for dialogue through threats and ultimatums. On the other hand, the government turned inwards to lick its wounds and had no time for dialogue.

The lack of bipartisanism is our own Achilles heel. Until our politicians learn this, politics will remain acutely competitive and destructive. They need to stop and re-examine the direction they are headed and take a different course. All that is need from our politicians (both in the government and the opposition) is to play responsible and accountable politics. They are all on watch from different positions and they should be held accountable for any destruction they occasion the country. Our duty as citizens is not to take sides in the destructive politics of our politicians but to examine and hold them responsible for their actions and omissions. Let us not be deceived by them that one party is guilty than the other. In this case, I think both have failed us.

Which Political Party Can Effectively Fight Corruption?

2006-11-13T13:42:00.000+01:00

As the time curtains fall for the Narc government, the fight against corruption is not won yet. The next government after 2007 general election will need to fight corruption effectively if the war is to be won. It is imperative to ask therefore among the foremost political parties in Kenya, which one can effectively do the job when it forms the next government?

Since the duel for the next government is most likely to be between Narc-Kenya and ODM-Kenya, which between them can effectively fight corruption when it forms the government? ODM-Kenya, which is a coalition of some of the current opposition parties, says that it will fiercely fight corruption when it gets into power. They accuse the current Narc government and by extension Narc-Kenya (government de facto) for failing to fight corruption effectively. On the other hand, Narc-Kenya though not the party in power de jure shares in the current Narc government efforts on the fight of corruption especially the creation of anti-corruption institutions and laws. It also shares in the Narc government's claim that war against corruption is in progress and on course.

To answer the question, criteria for effective fight against corruption are needed. Before that, it is important to establish why the current government may have failed in the fight although it has declared zero tolerance on corruption. When Narc government came into power it started on the right course. It sacked 23 high court and court of appeal judges as well as numerous magistrate suspected of corruption in what the then Minister for justice and constitutional affairs Mr. Kiraitu Murungi had nicknamed 'judicial radical surgical operation against corruption'. Although the action was supported by the public, within the Narc coalition partners there were mummers of dissent. The coalition had started manifesting signs of disintegration and was not united on the war against corruption. Ministers and members of parliament associated with Liberal Democratic Party, one of the coalitions partners, defaulted the judicial surgical operation as a political witch hunt of judicial officials belonging to ethnic communities not in favour with the government. The government on the other hand maintained that the fight was not directed to any particular ethnic group but was against the corrupt elements in the judiciary. Later when the former President Mr. Daniel Moi and the former Kanu government officials were put on notice and targeted for corruption investigation, LDP joined hands with Kanu to claim that the government's actions were a political witch hunt. They resolved to defend Moi against any corruption claims. As such Narc government was divided on the war against corruption and could not henceforth effectively wage the war.

As the cracks within the Narc coalition widened and the government became weak and less effective, President Mr. Mwai Kibaki could not effectively rule and was compelled to form a government of national unity to neutralise the opposition within the government and the parliament. He incorporated former Kanu government and other opposition members of parliament into the government. This had the effect of weakening the government's resolve to fight corruption because it could not afford to antagonise its new allies especially those in Kanu. The government had to learn to walk on the tight rope between the Narc coalition and the government of national unity and this meant diluting its resolve to fight corruption. It is during this period that the rapport between Kibaki and Moi improved. The former had to accommodate the latter for the government of national unity to function. At the same time the government had to tone down allegation of corruption against Moi and his former officials.

The lesson from the Narc government informs that the war against corruption requires a united government and political will to effectively investigate and prosecute corruption among other factors such as institutions and laws. A divided government has no chance. Using the united government and political will criteria it is appropriate to ask which between Narc-Kenya and ODM-Kenya stands a better chance of effectively fighting corruption after 2007?

Taking Narc-K first, the party is an offshoot of the Narc coalition. It is formed of members of parliament from the Narc political party partners who have remained faithful to the Kibaki government and leadership. The failure by Narc constituent parties to dissolve themselves and transform into a united political party, is one of the factors that led to the distengration of the coalition as the parties retreated to their former party identities. The Memorandum of Understanding the parties’ leadership had signed at the eve of 2002 general election could not hold them together after the defeat of Kanu and assumption of political power. The MoU instead became Narc's Achilles heel. It lacked flexibility to carry the coalition into the government era after election. Even after the withdrawal of LPD from the Narc coalition, refusal by the Narc Chairperson Mrs. Charity Ngilu to midwife the transformation of the remaining parties to a unitied Narc led to MPs allied to Kibaki to look for a an alternative political outfit in anticipation of 2007 general election.

In the new political realignment in the government, Narc-K is the de facto ruling party while Narc is the de jure government. Narc-K therefore cannot escape the accusation levelled against Narc government failure to combat corruption. But can it fight corruption effectively if it becomes the next government de jure?

As regards the unity factor, I think that Narc-K has good chances of remaining united after the election. After the constitutional referendum 2005 where the government lost to the opposition, the Kibaki government, which is composed mainly of Narc-K MPs, has demonstrated unity not seen there before. The fact that it does not intended to form any pre-election coalition with other political parties may mean also that it has better chances of remaining united after the election. Even if it was to enter into a coalition with other parties in post-election government, it will do so as the stronger party. Any party that it may negotiate coalition with will be a minor party or parties. Narc-K has a further advantage that it has already purged some of its members accused of corruption. This implies that it may not hesitate to deal with corruption within its ranks. Although there are still some ministers with corruption labels hanging on their necks, it is not likely that these will be included in the future Narc-K government. Narc-K has also tried to distance itself from the corrupt members of the current government and the former government. It seems therefore that Narc-K might not carry along the corruption baggages from Narc and Kanu.

Although Narc-K is being labelled a tribal party, this does not hold much water. This also applies to ODM-K. It is true that the parties enjoys huge support from a specific province but it cannot be denied that they have support from other provinces. The referendum vote indicates that there were more than 1 million votes from other provinces voting Yes and therefore supporting the government position. The fact that the parties will also need to form coalitions with other parties outside their province and ethnic sphere punctures the tribal label myth.

Narc-Kenya will on the other hand need to demonstrate the "political will" to fight corruption. The political will is not evident in the current Narc regime and could become the main obstacle in Narc-K. The unity factor, however, could work to its advantage and the political will may not be a big issue after all.

ODM-K origin is the No Vote alliance between the Narc government dissenters in LDP and Kanu the official opposition party during the constitutional referendum 2005. The alliance easily defeated the government on the referendum vote and the current ODM-K is trying to build on that success to challenge the government in the general election. ODM-K is also looking back to the Narc coalition success in 2002 election and hopes it can pull a surprise against the government. But conditions and circumstances have changed from the 2002 election and 2005 referendum. The hatred the electorate had against the Moi Kanu regime may not be there against the Kibaki Narc regime. The poor state of the economy, the Narc government inherited from Kanu, has also shown clear signs of improvement, which is an advantage to the Kibaki government. The referendum vote and election are different and the unity that was there during the referendum may not exist during the general election. Kanu united support was decisive in the referendum but such unity is not expected during the election.

In case ODM-K forms the next government after the general election 2007, can it effectively fight corruption? The unity factor is going to be crucial for ODM-K than it is for Narc-K. ODM-K is a coalition of three parties Kanu, LDP and the little known Labour Party of Kenya. The parties are signing a Memorandum of Understanding among themselves on political power sharing once in the government. The leaders are telling Kenyans that they learnt the lesson in 2002 and this time the MoU is well crafted. That notwithstanding, the MoU could still end up being ODM-K Achilles heel also. The MoU would only work effectively if the parties dissolved themselves into ODM-K. The idea of individual members being supported by LDP and a section of Kanu is aimed at dissolution of the parties into a single party, ODM-K. A section of Kanu and LPK are opposed to individual membership and instead would like corporate membership where the parties retained their identities. A compromise, which allows for both individual and corporate membership is being seen as the way out of the dilemma. This is, however, a postponement of the problem. The same problem that drove Narc to disintegration would plague ODM-K. Unity would be always at risk.

A number of ODM-K top leaders are among the politicians named in corruption scandals. Kanu as a party is also associated with the corruption during Moi reign. As such, Kanu will be liability as fighting corruption is concerned. ODM-K government unity will be put to great test when the issue of fighting corruption arises. The war against corruption by ODM-K would have to start with the coalition's top leaders and number of members of Kanu. ODM-K may end up being really a corruption baggage which would be difficult to off-load without threating the unity of the government.

ODM-K is exuding massive political will to fight corruption as long as it is not in the government. Whether the same enthusiasm will be there, once they form the government, is difficult to say. Narc government portrayed the same political zeal when it got into power but as the political party coalition reality dawned down the enthusiasm waned. ODM-K political will, unlike Narc-K's, has yet to be tested on this line.

Of the two, I think Narc-K stands a better chance of effectively fighting corruption if they form the next government than ODM-K. On a scale of 1-10, 1 being the worst and 10 the best mark, on unity of the government factor, I would give Nark-K 7 and ODM-K 3. As regards political will I would give Narc-K 6 and ODM-K 4.

But as I have maintained in this blog the war against corruption can be decisively won if those allegedly involved in corruption are locked-out of public and elective offices. The time to fight corruption is not after general elections. It is during the general election. It is during the election that the corrupt elements should be stopped from ascending to elective and public office. After the election the government, which is not weighed down by corruption baggages, can effectively investigate and prosecute the corrupt without endangering the government's unity. This is the lesson learnt from the Narc government efforts to fight corruption.

Let Us Think and Talk About Kenya

2006-11-02T23:59:00.000+01:00

In the fight against corruption it is important also to take some time out to think and talk about the nation of Kenya. Sometimes our talk and discussion are focused much on personalities. I am not saying that it is bad and useless to discuss personalities. But when the discussion concentrates on individuals it loses the big perspective of the country. What I would like us to do is to take a mental and conversational switch. Let us change the frame of our thought and talk from personalities to Kenya - the nation of Kenya.

We can start by asking and answering two simple questions.

1) What symbol do you associate with Kenya (Country)?

2) What does this symbol tell you about Kenya? What qualities and emotions does it evoke in you?

I think I will need to define what a symbol is to help others focus on the issue.

A symbol is something that represents something else, esp. a material sign or object that stands for a complex or abstract concept.

For example a rose is a symbol of love.

So what symbol do you associate with Kenya? Is it the Kenyan flag, the national anthem, Kenyan long distant runners, the wild life, the beuatiful landscape etc. Once you choose your symbol you may associate it with qualities and emotion it evoke in you.

For me the symbol that represents Kenya is the Kenyan flag. When I see it, it evokes emotions of respect and pride to be a Kenyan. The flag represents the nation of Kenya, its many different peoples, a country which fought for its independence, the positive culture of Kenya and bastion of peace in Africa. It evokes the emotions expressed in the national anthem, of peace, security, posperity, cultural richness, justice, unity and the strength in unity, liberty and freedom, thanksgiving, nation building, heritage, wealth etc.

Just to remind ourselves the national Anthem here it is,

O God of all creation
Bless this our land and nation
Justice be our shield and defender
May we dwell in unity
Peace and liberty
Plenty be found within our borders.

Let one and all arise
With hearts both strong and true
Service be our earnest endeavour
And our homeland of Kenya
Heritage of splendour
Firm may we stand to defend.

Let all with one accord
In common bond united
Build this our nation together
And the glory of Kenya
The fruit of our labour
Fill every heart with thanksgiving.

I think we need to revist the message in the national anthem and dedicate ourselves to the values envisaged therein. It encapulses the Kenyan DREAM and perhaps this is what as a nation we have forgotten. The dream of Kenya and the founding fathers. We have drifted away from this dream and that all we now see, hear and feel is negativity, evil, corruption, immorality, hatred, tribalism, betrayal, poverty and so on.

I think it is necessary now as a nation to refocus to the positive values in the national anthem and build a new Kenya based on these values. Kenyans need to DREAM again. We have forgotten how to dream. We need much bigger, more challenging and more inspiring dreams. I think the Kenya Vision 2030 is a good dream and we should visualize and work towards it. But we need also political dreams of unity, security, peace etc. The values inscripted in the national anthem should give us the desire, strength and commitmentto fulfil vision 2030.

I know that currently there is a lot of hopelessness and despair among the people and in the nation because of the difficulties the people are facing but we cannot overcome hopelessness and despair by losing hope and despairing. We need to regenerate hope and courage. Just as we cannot fight poverty by focusing on poverty. Instead we must focus on prosperity, wealth and abundance.

Wallace D Wattles says that "if you want to become rich, you must not make a study of poverty. Things are not brought into being by thinking about their opposities. What tends to do away with poverty is not getting of picture of poverty in your mind, but getting pictures of wealth, abundance and possibility into the minds of the poor."

Our leader, writers, artists, media, schools, singers and everybody should endeavour to paint positive pictures of wealth, peace, unity, prosperity, freedom, liberty etc. Not the negativity that has enslaved us for the last decades.

We need a positive thinking.

The Third Political Force Should be Founded on Anti-Corruption Alliance

2006-10-27T02:42:00.000+02:00

As the race in the next general election 2007 appears will be a two horse fight between Narc-Kenya and ODM-Kenya, the call for a third political force has intesified. Unfortunately, the shape and form of such a force is not clear yet. Its leadership is also not obvious. Musikari Kombo and Charity Ngilu have been speaking loudly about a third force but I don't think they have what it takes to lead a formidable third force. They are part and parcel of the current crop of politicians who have let Kenyans down . There is therefore a sense of urgency for the formation of a third political force in Kenya to safeguard people's interests and democracy. The two mainstream parties, Narc-Kenya and ODM-Kenya, as they are currently composed, can only perpetuate Narcism and Kanuism.

In the current political landscape, there isn't a clearly organised third political force. But that said, it does not mean that it does not exist. There are many Kenyans who think that the current political elite has betrayed the expectations of Kenyan people, through their corrupt ways and unhealthy political competition and confrontation. As such, they have not been working for the interest of the nation and its people and they are there only to advance their political and parochial agendas.

If present democratic and developmental achievements are to move to the next level, the current political elite should not shepherd that process. The infighting witnessed in Narc, which was entrusted with Kenyan's hope, is evidence of the inherent contradictions facing this group of leaders. ODM-Kenya is now positioning itself to reap from Narc's contradictions just as Narc benefited from Kanu's political mistakes. But in reality handing leadership to ODM-Kenya would mean recycling Kanu back. It is this awareness that makes the need for a third force urgent.

The challenge facing realisation of a third force is that of organisation. The third force exists but it is not organised. Professor Makau Mutua has given pointers to the sectors where the third force can be found. The problem is that these people are there as individuals. To become a formidable force, they need to be organised. Recently, a political party Chama Cha Mwananchi (CCM) was registered and little has been heard of them since. For me, their vision has all the trappings of a third force and goes to confirm the existence of this force.

A third political force should be organised around a dear aspiration of the people of Kenya. Today, the people enjoy a measure of democracy, human rights, social and economic development. They are enjoying these within the current political dispensation. In that case, a third force has to promise something bigger in order to capture the imiginations and hearts of the people. They have to promise higher level of democracy, human rights, social and economic development but also something the others cannot deliver - "a corruption free Kenya". As such, the third force should be formed on anti-corruption alliance.

Promising a corruption free society is not saying that elect us first and then we shall fight corruption. That is what the current Narc regime promised but has failed to deliver. Promising a corrupt free society is saying elect us because we are not corrupt. It is saying don't elect corrupt leaders. It is locking-out the corrupt from any elective and public office. The battle is not a future duel, it is a now war. It is war to be fought and won during the general election. It is only through anti-corruption clarion, that the current corrupt Narc and former Kanu politician can be sent packing out of political and public arena. The people of Kenya should not entrust this task to the government and courts again. It is their task and it should be completed during the election.

The third force has to realise that the only weapon it has is a clean record. They should use it in full against corrupt Narc-Kenya, ODM-Kenya and other politicians. These politicians have to be shown the anti-corruption "red card". They have to be sent out of the political and public service arena.

The next question to ask is whether the third force needs its own political party. Two options may be open here. First option may be to establish their own political party. The second choice is to operate within the existing parties but sponsor their own third force candidates during the general election. Each option has its advantages and disadvantages.

The advantages of the first option is that the third force will have its own identity. They will be the owners of their political party. They will be visible. The disadvantage is whether the people are ready to change loyalty from the already established parties to a new political outfit. Again, it would be important to question whether there is enough time to popularise a new political party before the elections.

The disadvantages with the second option is that the third force will not have a clear identity from the other parties. They will not be the "owners" of the political parties they operate within. The advantage, on the other hand, is that they will not be asking the people to change loyalties from the current political parties to a new one. Instead the message will be, we are sailing in the same boat, but let us get rid of the bad and corrupt elements.

I think the second option would be the best at the moment. The creation of a third force political party may antagonise the electorate. Operating within the existing mainstream parties will not present the electorate with a dilemma of changing parties and will introduce the anti-corruption agenda in the parties. It will be offering electorates a criterion for choosing leaders. The third force will present their candidates for election to compete a longside the mainstream party candidates. The third force task will therefore be to popularise their candidates among the electorate. In that case, the third force will be offering their candidates for election both where Narc-Kenya is strong and also where ODM-Kenya is popular.

Using the above strategy, the third force may end up having the largest number of elected members in the parliament and civic seats. It will be well represented both in the parties that form the government and in the opposition. The third force could therefore have high influence in the politics, government and policies of the day.

Anti-Corruption Alliance Needed Not Religious Parties

2006-10-15T01:44:00.000+02:00

The current debate by some religious leaders for creation of a Religious or Theocratic state is not the right way to solve the problem facing our country. The main problem facing the country today is corruption and lack of uprightness in political leaders. Religious leaders taking over the leadership and establishing a theocratic state would not solve these problems instead it will polarise a country already ethnically divided.

At the same time Kenya is constitutionally a secular state. But this does not mean that the constitution cannot be changed. Fortunately, the constitution making experience informs that changing the constitution is not an easy business in Kenya. Rather than compound the problems facing the country the leaders need to be positively creative by building a broad anti-corruption and uprightness alliance.

Forming anti-corruption alliance is the best possible solution to the problems of corruption and lack of upright leaders. Religious leaders should rally their faithful and other Kenyans under the anti-corruption banner. Anti-corruption alliance need not be a political party but a common criteria for identifying political leaders to sponsor using exisiting political parties. For example, religious leaders can exercise great influence in the next general election by advising their faithful not to elect known corrupt persons or person of dubious moral standing into political positions. If a party nominates a corrupt or morally undesirable candidate, the electorate should be advised to reject the candidate and vote for a rival anti-corrupt and morally upright candidate. I think religious leaders can exercise political leadership and influence through their teaching rather than turning the country into a religious conflict zone by introducing divisive religious theocracy.

Anti-corruption alliance is more appealing to the majority of the people than a theocracy. Most Kenyans are tired and loath corruption especially in the high political echelons. Every ethnic group in kenya does not want corruption. Workers, christians, muslims, hindus, women, the youth, students, and every other Kenyan hate corruption. Anti-corruption is the most unifying and moblising concept in the country today. Why not use it to get rid of politics of corruption and moral decadence in our society?

Related stories:
AGANO religious party registered
Cleric opposes religious party
NCCK denounces Christian party
Agano not a religious party, say officials

Anglo Leasing List of Shame

2006-10-13T16:31:00.000+02:00

On 20 September 2006, the minister for Justice and Constitutional Affairs Ms Martha Karua released what she termed as the Anglo Leasing list of shame. The list includes names of two current ministers in President Mwai Kibaki’s government (Narc) and eight former ministers both in former President Moi’s government (Kanu) and Kibaki’s government. It also includes names of 12 permanent secretaries in both Kanu and Narc governments.

The list of names and the type of contracts covered the period between 1997 and 2002 when Kanu was in power and 2003 to 2004 when Narc was in charge. The current sitting ministers are Vice-President and Minister for Home Affairs Moddy Awori and Minister for Roads Simeon Nyachae. The former ministers in the Kanu government are Musila Mudavadi, William Ruto, Chris Okem, Julius Sunkuli, Chris Obure and William ole Ntimama. Those in the Narc government are David Mwiraria and Dr. Chris Murungaru.

The government seems to have changed tactic and is now willing to hold ministers, in whose watch the Anglo Leasing contracts were signed, accountable. Prior to this, only permanent secretaries were charged in court in relations to the corruption contracts. Ms Karua said she was making the names public in order to stop the Opposition from blaming the Government over all the fraudulent deals. According to her some of the opposition politicians shouting corruption loudest were heavily implicated and the public was entitled to know this.

The permanent secretaries mentioned in relation to Anglo Leasing corruption contracts are Sylvester Mwaliko, sammy Kyungu, David Mwangi, Joseph Magari, Ali Korane, Margaret Chmengich, Zakayo Cheruiyot, Mwaghazi Mwachofi, Simeon Lesirma, Moses Obudo and S. K. Bondotich (financial secretary).

Anglo Leasing corruption scandal involves a total of 20 shady government contracts. They began during Moi’s era and continued during Kibaki’s rule. Unearthed in 2004, the contracts involved dubious, multi-million dollar contracts for supplying Kenya with a system to produce tamper-proof passports, and for building police forensic laboratories among others. The deals involved Anglo Leasing and Finance Ltd -- a fictitious company.

The main contention regarding accountability of those involved has been where to place the blame. Is it on the ministers who are the political heads of the ministries and who do not have the power to sign the contracts? Or is it with the permanent secretaries who are the executive heads of the ministries and who wield the power to sign such contracts? Ministers named in the scandal exonerate themselves claiming that they are not guilty because they did not sign the contracts. The cases already brought in court have involved only the permanent secretaries but in a recent move the Kenya anti-corruption commission has recommended the prosecution of ministers.

I think the issue of accountability can be viewed from two perspectives: legal and political (ethical). Under the legal perspective, the issue of guilt is a matter of interpretation by the court. It is the court that will decide where to place the blame either on the ministers or the permanent secretaries or both.

As regards political and ethical accountability, I think the ministers named in the scandal have no choice but to resign from their public offices awaiting further investigations and determination of guilt by the court of law. It is hypocritical for any minister or politician to claim that they cannot resign until evidence is adduced. Similarly, it would also be hypocritical for any politician named in corruption scandal to vie for any public office elective or otherwise. Corruption allegations are serious and they should be treated with due seriousness.

Kitale Prison Land List of Shame

2006-10-06T01:19:00.000+02:00

On 4 Octobe 2006 the Vice-President and Minster for home affairs Moody Awori tabled in Parliament the list of 204 people said to have been allocated the controversial Kitale Prison land measuring 2,094 acres two decades ago. The beneficiaries were mainly top officials in the former President Moi's administration. The land was subdivided into 204 parcels of land and distributed to the beneficiaries. The release of this list of shame is welcome.

The allottees, Mr Awori said, include politicians, former diplomats, an ex-judge, military and police officers, parastatal heads as well as provincial and district commissioners.

The main beneficiaries were named as former Chief of General Staff Daudi Tonje, who is said to have been given 20.23 hectares, civil aviation director Chris Kuto (1.67), former nominated MP Mark Too (28), former presidential escort director Samson Cheramboss (12.14) and Mr Stanley Manyinya (eight).

Ex-judge Alex Etyang received eight hectares, former diplomat George Nadada Oimino Agoi (six hectares), senior military officer Moses Yatur (eight) and colleague Hezron Ambundo Murungu (six).

Others were former Kenya Seed Company managing director Nathaniel Tum, who got 22 hectares as well as provincial commissioners Peter Kiilu (four), William Changole (four), Amos Bore (24.23 hectares for two parcels), Nicholas Mberia (8.89) and Ishmael Chelang'a (three).

The Harambee Savings and Credit Cooperative Society was also given two parcels of six and two hectares.

Mr Awori said that the Government would act on the deal according to recommendations in the Ndung'u report on irregularly allocated public land. In the past the government has asked the beneficiaries of illegal land allotment to surrender their plots and forego prosecution.

As expected those mentioned are already daring the government to reposses their land swearing not to surrender their parcels of land. They maintain that the land was distributed to them legally. They have vowed to defend their property in court of law.

The posturing by these Kings of corruption confirms the magnitude of the task of fighting corruption facing the government. The government, however, should not relent. It should face the culprits at whatever arena they want to defend themselves. After all, just like other citizens they have a right to defend themselves in a court of law. The people should, however, give the government their support and deprive the culprits any ethnic community support and sympathy.

Amnesty on Corruption should include a Ban from Public Office

2006-10-04T14:45:00.000+02:00

Justice and Constitutional Affairs Minister Martha Karua offer for amnesty to corruption tainted politicians is welcome but it should not be without a caveat. It is true that corruption cases take long to be concluded. It is also true that Kenya needs unity and corruption seems to have divided the country into tribal groupings with each community defending its corrupt sons and daughters. It is also true that Kenya needs healing. But it is also true that the country needs justice. It is therefore doubtful that the return of looted money and property and forgiveness of the looters will lead to healing and justice.

Amnesty is a noble gesture from the government and should be embraced. Those who have stolen public funds and properties should return them. This is called restitution - "the act of restoring an object to the rightful owner". Here, we are talking about billions of shillings which if they were returned, Kenyans could enjoy the benefits of roads, hospitals, medicine, education and other social amenities. Restitution is not therefore foolhardy because if the court route were pursued exclusively, it could take decades to recover the monies as the Goldenberg scandal has proved. The society needs the money for development as such it is best to use the shortest possible means to get the money back.

Restitution alone, however, is not adequate as it does not compensate the loss of use of the money and properties for years. It may get the culprits out of the hook but it does not serve justice. The victims, the people of Kenya in this case, still have to bear the gross weight of loss suffered for years. Jail term for the culprits could give a sense of justice but it would be costly and consume more public resources as seen with the Goldenberg scandal where the investigating commission gulped hundreds of millions of shillings. Still, after a decade of pursuit of culprits none has been jailed yet.

In this case, I think that amnesty should not mean that the politician go scot-free by mere return of the stolen public goodies. For justice to be done and be seen to be done, a deterrent measure is required. The politicians and other culprits should also be barred from holding public office for life. It is only through such extra demand that a clear message can be sent that corruption does not pay. Otherwise, if the same people were allowed back into public life as if nothing happened, corruption will be seen as unconventional way to loan money from the public and return it when public pressure is applied or at the conveniece of the culprit.

Amnesty should also be restricted to past and known corruption incidents. New corruption should be dealt with through the normal administration of justice procedures. While the cost and delay reasons could justifiably apply for past corruption, it cannot apply to new corruption. Today, laws and institutions to deal with corruption are in place and they should be invoked in case of new corruption without inordinate delay.

See what Kenyans are saying:

A New Anti-Corruption Party Formed

2006-10-02T00:52:00.000+02:00

This blog welcomes Chama Cha Mwananchi (CCM) as a party with a difference. In particular, it recognises with appreciation the anti-corruption stand of the party. But we must add that, the writer and this blog is not a member or mouthpiece of CCM. We just appreciate and support an idea whose time has come.

The party which draws its membership from the former political prisoners and government critics is emphatic that it would not admit people with tainted record in its rank and file. It adds that CMM is not and shall not be a den of thieves or a hideout for oppressors, dictators, murderers, Goldenberg thieves, Anglo Leasing plunderers, corrupt politicians and incitersof racial and tribal hatred."

The party leadership is composed of former political prisoners and detainees. Dick Kamau who is the sectary-general of the party is the only known official so far. The rest are not officially revealed yet.

The Kill Corruption Monster blog sees the formation of CCM as a milestone in Kenyan politics because as we have argued there is need to lock-out corrupt tainted politicians out of public office if the war against corruption is to be won. It also means that next general election will be fought on an anti-corruption agenda and not a fight between Narc-Kenya and ODM-Kenya.

Parties that fail to lock-out corrupt tainted politician out of the election race should know that anti-corruption is bound to influence voters opinion in the election. We hope that CCM will become a formidable party given its focus on corruption and other political impropriety. Especially, we hope the message to lock-out those politicians that are linked to corruption out of political arena will hit resonant note with the electorate and the public.

Lock-Out Corrupt Politicians from Parliament and Public Office

2006-09-29T02:12:00.000+02:00

Corruption is endemic in Kenya. The slow fight on corruption experience of last few years indicates how difficult it is to kill the corruption monster rampaging our country and society. It has also revealed that, entrusting the task of eradicating corruption to a corrupt political elite does not work. A shift of paradigm - a radical surgical war on corruption is required. In the new paradigm, new anti-corruption crusaders and a new focus are required.

New anti-corruption crusaders

The war on corruption has been lost because it is led by corrupt politicians. They are the persons shouting corruption loudest. They are the ones pointing to us who is corrupt and who should be kicked out of public office. But do we need persons on Anglo-leasing list of shame, Goldenberg list of shame, Land Grabbing list of shame, or any other corruption list of shame lecturing the public on corruption or standing on gates and fences shouting others out of office? Is'nt it time to put a stop on these corrupt elites?

The new anti-corruption crusaders should be the people of Kenya. It is the people who can kill the corruption monster perpetuated by the politicians. I say this because i believe 99% of the Kenyan people are not corrupt. Corruption is perpetuated by 1% of the population led by corrupt leaders. So if the anti-corruption crusade is led by majority of the population it will surely win against corruption. In that case, the anti-corruption crusade should be championed by uncorrupt leaders. That is uncorrupt politicians, uncorrupt civil society and church leaders, uncorrupt women leaders, uncorrupt youth leaders, uncorrupt community and local leaders, uncorrupt civil servants and teachers, uncorrupt policemen and policewomen, uncorrupt judges etc. The corrupt should be removed from the arena.

A New Focus

The war on corruption can only be won by change of focus. In the past the focus has been shaped by corrupt political elites. But in the new war, the focus should switch to the corrupt politicians themselves before it moves to other sectors of society. Justice Minister Martha Karua has already changed the focus paradigm by casting the corruption spotlight on the corrupt. As such, we need efforts of more daring and youthful uncorrupt political leaders like Martha Karua to champion the crusade. It is high time the politicians stood to be counted. It is time to separate the corrupt from the uncorrupt. The corrupt should be rejected by the people and be locked-out of parliament and public office.

2007 General Elections Golden Opportunity

The 2007 general election is a golden opportunity for the people of Kenya to eradicate corruption in Kenya for all times. Voters should be educated that 2007 election is anti-corruption election, in which all corrupt leaders civic, parliamentary and presidential will be thoroughly scrutinised and locked-out of public office if found corrupt.

To assist the public to differentiate the corrupt from uncorrupt more lists of shame should be released. But the lists should not be arbitrary. They should be based on evidence of commission or omission but need not be conclusive such as required by court of law. The anti-corruption war is a moral, political and social war and cannot wait for the anti-corruption commission, the attorney general or the courts to investigate, prosecute and convict. To do so, war against corruption will never be won.

Corruption war is about perception we have been told many times by our leaders. The electorate should apply the perception principle in the 2007 election and lock-out the leaders perceived to be corrupt either in the governement or opposition. Perception principle was applied when leaders called for the resignation and firing out of office of corrupt government officials and ministers namely Murungaru, Kiraitu, Saitoti, Mwiraria, etc. The perception principle requires that those named, mentioned and associated with corruption or those who corruption took place during their watch to step aside for the investigations to be carried out. If the electorate apply the perception principle most of the current crop of politicians will be locked-out of civic, parliamentary and presidential races in 2007. As such, Kenya would be saved from the grip of corrupt politicians and regain its moral respect and integrity.

Conclusion

In the next general election, the fight is not between Narc-Kenya and ODM-Kenya (corruption v. corruption) as we are told by the corrupt political elite. The fight is about corruption (anti-corruption v. corruption). It is about eradicating corruption in the country starting with the elective public offices. Electorates will be voting for corruption if they elect corruption tainted leaders or anti-corruption if they elect uncorrupt leaders. In most civilised societies a mere allegation of corruption or other impropriety is enough to cast doubt about a politician's election candidature. Kenyans need to civilise the country by locking-out those tainted by corruption from public office.