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

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

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?

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

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

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!

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!

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

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!

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

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

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

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!

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

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

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

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

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

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

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!

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.