Congratulation President Barack Obama for the Audicity to Hope

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!

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?

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

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

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!

(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?

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?

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

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!

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!

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!

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

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!

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!

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!

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

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

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

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

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.