It emerges that Kenya’s Prime Minister Raila Odinga wanted President Kibaki to appoint a foreigner to head the judiciary. This can only mean one of two things: either (i) Mr. Odinga wants a super clean judiciary that will interpret the law in a disinterested manner or (ii) he thinks that the Kibaki-PNU faction is so strong that they will be able to buy off any local judge appointed to head the judiciary.
Because Mr. Odinga or his allies could potentially find themselves facing the judiciary in the future, I don’t think it is the former concern that is motivating the Premier. It must be the case that he realizes he has no way of locally dealing with the Kibaki-PNU faction, except through name-and-shame games and other sanctions involving foreigners. To compensate for the fact that he cannot contain the Kibaki-PNU coalition politically, Mr. Odinga is hoping he can do so via independent institutions.
What does this mean for Kenyan democracy? It means that it is not yet Uhuru. As long as there is a faction in the country that can do whatever it wants under a “wapende wasipende” mentality Kenya will remain a democracy in name only. True democracy will only come once all factions involved realize that the country belongs to all Kenyans and that they cannot get away with subordinating the interests of regular Kenyans to those of a few ethnic chiefs.
The man to blame for all of this is Kalonzo Musyoka. Mr. Musyoka is bad for Kenyan democracy because he is the all important median veto player, but lacks principles. Because his support gives either side the needed majority he remains the biggest stumbling block to any compromise arrangements that might ensure that regular Kenyans truly benefit from the new constitutional dispensation. Kibaki does not need to negotiate with Odinga as long as he has Kalonzo on his side. But given Mr. Odinga’s political clout, good and lasting institutions will only emerge if Kibaki and Odinga arrive at a self-enforcing arrangement.
Mr. Musyoka initially campaigned against the new constitution. Mr. Musyoka has been at the forefront of efforts to protect perpetrators of the 2007-8 post-elections violence that killed over 1300 Kenyans. Mr. Musyoka continues to stand on the wrong side of Kenya’s reform agenda. Given the recent comments from Francis Atwoli, the trade union leader, it is encouraging that Kenyans are cognizant of these facts.
Kenya’s newly emboldened imperialparliament is up to some mischief. MPs rejected nominees to two crucial commissions created by the country’s new constitution: the Revenues Allocation Commission and the Commission for the Implementation of the New Constitution. The MPs rejected the nominees to the two commissions in response to a court decision that ordered the boundaries commission not to gazette newly created parliamentary constituencies. Their mischievous excuse was that the commissions lacked regional balance.
Pols from central Kenya went to court challenging how the redistricting was done. Many of them thought that the boundaries commission favored ODM, the Premier’s party. MPs from the western half of the country, the northeast and the coastal region seem to be OK with the list. I still do not understand how in the world anyone thought that redistricting of constituencies would be apolitical. [Despite the existence of a formula in the constitution].
I am always amazed by the naivete and lack of strategy among Kenyan politicians who seem to think that public officials always have the best of intentions – never mind the fact that the country is one of the most corrupt in the world. Given the outcome, Mr. Ligale and his commissioners must have been in the pockets of ODM. The losers should learn from this and in the future design more airtight systems that assume the worst of public officials. No country has ever succeeded whose institutions depended on human goodwill.
As a result, a crucial deadline has been missed in the implementation of the new constitution and any Kenyan can go to court demanding the dissolution of parliament.
Lawyers, however, refute the notion that Kenya is in a constitutional crisis. There are ways around the matter. Firstly, the MPs can amend the constitution to give themselves more time. Secondly, the judiciary can give the boundaries commission a new lease of life and extend its mandate until the job is done. Lastly, and perhaps most plausibly, the President and his Premier can arrive at a political solution to the problem and allow the process of implementing the new constitution to move on.
And in other news, Kenya’s Prime Minister Raila Odinga has very bad advisers. Asking that gays be arrested is so 16th century. In any case the last thing we want to do is waste critical police man hours policing private morality while criminal gangs continue to make the lives of many Kenyans a living hell. Mr. Odinga should know better.
Latest: The Daily Nation reports that former Kenyan Transport Minister Ali Chirau Mwakwere has been re-elected as member of parliament for Matuga. Mr. Mwakwere will probably be reinstated as Transport Minister by President Kibaki. The Matuga by-election was occasioned by a court order that annulled Mwakwere’s initial election in the 2007 general election.
Update: Mwakwere leading the tally halfway through the counting.
Former Kenyan Transport Minister Ali Chirau Mwakwere faces a tough challenge in his quest to retain his seat in the Matuga by-election being held today. Mr. Mwakwere lost his seat after a court ruling over constituency-wide irregularities in the 2007 general election. Mr. Mwakwere is contesting the seat on a Party of National Unity (PNU) ticket while his main challenger Mr. Hassan Mwanyoha is running on the Orange Democratic Ticket.
The Daily Nation reports that the blasts at a “NO” rally in Uhuru Park, Nairobi were caused by grenades. This confirms Kenyans’ worst fear – that the explosions were not accidents but an organized attack on those opposed to the draft constitution. One hopes that Kenyan politicians will be sober-minded as the relevant authorities investigate this incident. The last thing we need is careless finger-pointing and sabre-rattling.
I hope that the president and his prime minister will follow on their promise to bring those responsible to book. This is a potentially dangerous attack on Kenya’s young and troubled democracy. Freedom of expression is one of the key pillars of civilized society. This is an attack on every Kenyan’s freedom of expression. Those opposed to the draft constitution should be allowed to do so openly and as loudly as they can, as long as they are within the limits of the law.
Politicians all over Kenya are currently on campaign mode for or against the draft constitution. The referendum on the new document will be held on the 4th of August this year. The main sources of division in the proposed constitution include land management, devolution of power from the centre, inclusion of Kadhi’s courts to adjudicate on Muslim family law and the existence of a loophole that could allow for the legalization of abortion.
Following a petition by former MP Reuben Ndolo (of the “weka tire” infamy), Lady Justice Kaplana Rawal has nullified the election of Dick Wathika as Makadara MP in the 2007 general elections. Mr. Wathika becomes the 5th sitting MP since the chaotic 2007 vote to lose after an election petition in court. The 2007 elections were marred by irregularities that almost plunged Kenya, previously an oasis of peace in a turbulent part of the Continent, into civil war. 1300 people died before a power-sharing agreement was brokered between incumbent Mwai Kibaki and his challenger Raila Odinga. Given that most Kenyans voted “three piece”, the apparent widespread irregularities at the constituency level must be highly correlated with those of the presidential vote. Neither PNU nor ODM can claim innocence. The real culprit, however, is one Mr. Samuel Kivuitu. The former boss of the electoral commission presided over a sham election with a straight face and got away with it. Shame on him.
The Church in Kenya has every right to lobby for a pro-life amendment to the draft constitution. But that does not give them the right to completely rubbish the opinions of women leaders. Women like Gender Minister Esther Murugi are not crazy child-killers. They are reasonable people who do not want the male-dominated constitutional review process to usurp too much of women’s reproductive rights. Demanding for women’s reproductive rights is not being pro-abortion. And if the church leaders are so concerned about abortion perhaps it is time they eased their opposition to contraceptives that limit the occurrence of unwanted pregnancies in the first place.
The fact that the Kenyan clergy feel the need to legislate morality is a clear pointer to their failure to do their job right. If you do not want people to have premarital sex or use contraceptives, preach to them from the pulpit. Do not seek to make this into law. In any case, Kenyan society is already conservative enough when it comes to things like abortion and sexuality. What we need is not a constitution that pushes us further into paranoia about these issues but one that protects our mothers and sisters from the tyranny of the men from 10,000 BC who run our country.
This quote from Hon. Murugi captures the absurdity of the amendments being proposed by the anti-women’s rights team: “Let us have a reproductive health bill where all other issues are addressed. For instance, women are using morning after pills after sex. Are you going to put us all in jail?”
I am sure none of those opposed to the amendments is into the idea of killing the unborn. All that Kenyan progressives want is a law that does not take away women’s rights to choose what is good for them. Reason demands that we should not legislate morality. This will only lead to more kienyeji abortions that will continue to kill many Kenyan women each year.
It is fascinating how the conservative types (in both ODM and PNU) that ordered policemen to shoot rioters or organized militias to kill fellow Kenyans in early 2008 are the same ones at the forefront of the faux pro-life campaign. May their efforts to go against reason fail.
As usual, Mutahi Ngunyi has a provocative piece in the Sunday Nation. I am sort of sympathetic to his idea of ethnic suicide (by which he means dumping ethnic identities and what they stand for) – I was in Eldoret and Timboroa for two days this summer and saw with my own eyes the fruits of ethnic hatred. The short-term operationalization of the idea may be problematic though. To make Kenyans out of Luos and Kikuyus and Kalenjins will take time. Because of this the process of “ethnic suicide” ought to take place sub-consciously, for if it is “managed” the end results or the process itself may be nasty.
Gitau Warigi pours some cold water on Bethuel Kiplagat’s TJRC. I like his argument. I am always baffled by how much we spend on such useless commissions only to be rewarded with “classified reports” issued to the president. Philip Ochieng‘ has an interesting piece on ethnicity and politics in Kenya. I wonder how many politicians read his column… And Kwendo Opanga just gave me one more reason to think that Vice President Kalonzo Musyoka is as misguided as ever. This is not to say that the alternatives to Mr. Musyoka in the post-Kibaki dispensation are any better. Woe unto Wanjiku.
And in other news, is this legitimising crime or what?
President Kibaki has created about 180 districts over the last 6 years. The logic behind the creation of the many districts, according to the president and his men, has been that there is a need to bring government services closer to the people. One obvious question then is what government services? Are we talking about registration of births and deaths, motor vehicle registration, licensing, issuance of title deeds, judicial services and all that stuff? Because these services are still mostly highly centralised, requiring one to travel either to Nairobi or to far off provincial headquarters. Critics of the new districts have oftentimes highlighted their high cost and non-viability (The president thinks such critics are “backward”).
It was therefore welcome news when yesterday the president announced the halting of the creation of new districts – citing financial reasons. For some reason this fact (high costs) never crossed the minds of the president’s advisers somewhere between new district # 1 and # 180.
And now that we have over 180 new and expensive districts – most of them dished out for political reasons and “people’s demands” – I think it is time we require the new districts, being local governments, to do what governments do: TAX EVERYONE. Each district should be required to raise a percentage of its expenses from local populations (it is quite unfair for Nairobians to pay for non-viable districts in remote parts of the country created purely for political reasons). This minimum requirement need not be uniform across the board – people in West Pokot need districts too, you know – but should be geared towards making local people bear some responsibility for their local governments. With local funding for local districts, Kenyans may be persuaded to care more about who gets appointed to be DC and what their DC and the many district committees do. And to add to the positives, the DC’s will have an incentive to promote local economic activity to generate revenues.
Eventually, one hopes, this idea of local taxation for local services will make Kenyans demand that they get to elect their local DC’s instead of having State House appoint them.
This may sound like a pipe-dream but there is hope. Given parliament’s increasing assertiveness and power-grab from the executive and judiciary it is conceivable that such an idea can successfully be passed into law by the august House. Does someone know a crafty MP with nothing to lose who can champion this cause?
ps: I never thought I’d ever say this but I am actually missing the Standard online edition. What happened to them? Can’t they afford a website?
In an ideal world the ranking of an institution as the most corrupt in a country is enough reason for the head of that institution to resign or initiate radical reforms to mitigate the situation. But this has never been true for the Kenya Police Force. Every year, the Kenya Police Force has emerged as the most corrupt institution in the country without serious repercussions at Vigilance House. It therefore came as welcome news when the president announced today the replacement of Major General Ali with Mathew Iteere as Police Commissioner.
Ali tried to rein in organized crime and to tame the proscribed Mungiki sect. The executive lacked the political will to let him finish the job and Ali lacked the spine to take the fight to those who stood in his way. He was also anti-reform, which must be the main reason why the president has chosen to show him the door. His legacy will forever be tarnished by the force’s extra-judicial killings that took place on his watch. But he will also be remembered as the no-nonsense commissioner who moved the force from the backward days of the Nyayo era police state towards a force befitting a quasi-democracy. Many would agree that for a reformer he lasted for too long at the helm and therefore failed (kind of like what will become the fate of his former boss, President Kibaki).
Mr. Iteere, from the paramilitary GSU, comes in at a time when the force needs urgent structural and operational reforms (as recommended by the Ransley report). I know nothing about the man but I hope he is strong enough to stand up to the president’s men (and increasingly the Premier’s men too) who might stand in his way. We wish him well.
Muthoni Wanyeki is my favorite weekly columnist with the East African, a regional weekly. This week she wrote a piece on the Kenyan government’s reluctance to prosecute perpetrators of the post-election violence of early 2008.
The Kenyan cabinet yesterday decided not to set up a local tribunal to try those who organized the targeted killings of people who spoke certain languages (but lived in the “wrong” places) after the bungled general elections of late 2007. Instead, in an effort to assuage the fears of a hostile parliament, the president and his cabinet decided to clean up the police force and the judiciary and have these organs try the said suspects. Yeah right.
My doubts of the cabinet’s intentions are premised on the fact that reforming the police force and the judiciary will not take a few months. The police force is the most corrupt institution in this country. Reforming it will take years. Same with the judiciary. If we are to wait for the police and judges to stop taking bribes and begin respecting the rule of law before we initiate the prosecution process then we might as well forget about the whole thing.
I remain deeply skeptical of President Kibaki’s commitment to making sure that those who organized the killing of more than 1300 Kenyans be brought to book. If he really means what he said yesterday then he should begin by firing Attorney General Amos Wako. This is a man who has been in that position through the tortures of the Moi era, the killings that preceded the 1997 general elections, and a myriad corruption scandals (including the mother of all, Goldenberg) without ever bringing any prominent player to book. Mr. Wako has been as effective as a parachute that deploys on the second bounce and should be shown the door, no questions asked.
It was always going to be difficult to bring the oafish ethnic chiefs masquerading as patriots to book. Yesterday was a stark reminder to all Kenyans that justice is political and that if change doesn’t come soon the powerful will continue doing what they want and leave the weak to suffer what they must.
Leaders are meant to lead – to set the agenda and make people believe that what is good for them is exactly what they need. On this count, Agriculture minister William Ruto has failed as a leader. On the issue of Mau Forest, he is increasingly sounding like a mad populist out to gain political mileage at the expense of millions of Kenyans – including those that he is purportedly protecting.
That deforestation in the Mau is causing the drying up of vital water sources – 12 rivers included – is no longer contested, not even by Mr. Ruto himself. I therefore do not understand why he is still against the eviction of those who illegally acquired land in the forest. The government has already agreed to compensate small holders (with title deeds) who were cheated into buying land in the forest. But wealthy Kenyans who acquired land in the Mau due to their connections to the Moi Administration should not be given a cent. In any case they should be investigated.
I say it is time that Mr. Ruto acted as a leader and made the case to his constituents that saving the Mau is in their best interest. This is the least he can do if he really aspires to be seen as a respectable national leader rather than an over-glorified tribal chief.
Two weekends ago I ventured into Siaya in Nyanza province of Kenya to visit family. On the way there, I saw for the first time the consequences of the violence that rocked the country early last year. More than a year later, whole families are still living in tents at the Molo junction. Many more have had to endure life in make shift houses, still unsure of whether they will be able to return home permanently.
But in Nairobi, the issue of resettlement of Kenya’s IDPs is on no one’s radar. The hot topic right now is which ethnic chief is on the list of suspected instigators of the post-election violence that killed more than 1300 Kenyans and displaced hundreds of thousands. The political class has completely forgotten about the people who did their dirty work or suffered the consequences of the same.
It is a shame that the mainstream media in Nairobi has bought into the distraction tactics of Kenya’s (very mediocre) ruling class. As much as we should know about and debate whether to try suspected plotters of the violence here at home or in the Hague, we should continue focusing attention on those that are still suffering in tents away from schools, hospitals and their farms. These Kenyans deserve better than they are currently getting from Nairobi.
The committee of experts charged with steering the process of giving Kenya a new constitution has come up with two contentious issues that they think should be ironed out before Kenyans can finally have a new constitution – after over 20 years of waiting. The issues are:
1) whether to have a presidential, parliamentary or hybrid system of government
2) whether the term of the current parliament should expire with the adoption of the new constitution.
To resolve these issues, the Attorney General, Amos Wako, wants Kenyans to submit their suggestions to his office. I say this is nonsense. The original idea to involve Wananchi in the writing of a new constitution was a mistake (I agreed with Moi, even back then as a high school kid) and any further involvement of “wanjiku” will remain an exercise in futility. Some of the best constitutions of the world – like the American one, for instance – were drafted by experts. Villagers in Siaya or Maragua do not care whether we have a presidential or parliamentary system. These are issues only in the heads of Kenya’s power-hungry ruling elite. All Wanjiku cares about is the number of sufurias in her kitchen. Period. Whatever system promises more sufurias she’ll be for it.
For full disclosure, I am not a fan of either PNU or ODM. President Kibaki is a living example of the excesses of an all powerful presidential system and a form of government lacking any separation of powers – the president and all members of his cabinet are also members of parliament. PNU wants to perpetuate such a system judging by what its talking heads are voicing.
That said, I think ODM’s call for a parliamentary system of government is also misguided. Kenya is a young democracy that needs stable government. Parliamentary systems, especially in fractious states like ours, are highly unstable. Look at Italy, Israel and Lebanon. They hold elections almost every few months and take forever to form governments. We need a stable and functional executive if we are going to accelerate Kenya’s economic development.
My two cents on this is that the solution lies in having a presidential system strengthened by a complete separation of powers. The president should be head of the executive and not a member of parliament. His cabinet ministers should also not be sitting members of parliament. Parliament should be independent. To acknowledge the ethnic realities of the country we need to have a two-tier legislature. The lower house should be composed of representatives from constituencies. The upper house should represent Kenya’s ethnic mix, with equal representatives from the major ethnic groups and regions. The judiciary should be independent of the executive without any compromise whatsoever. Judges should have life tenure and have their pay regulated by an independent public servants remuneration commission.
And on the second point. 2012 is close enough. Let President Kibaki serve the rest of his term and go in peace.
Kenya’s Justice Minister, Mutula Kilonzo, has made it clear that the government does not want the architects of Kenya’s post-election killings to be tried in the Hague. He instead wants to create a local tribunal. Previous attempts to establish a local tribunal were defeated in the Kenyan parliament.
A local tribunal is both symbolic and practical. It is symbolic in the sense that it reaffirms Kenya’s sovereignty in the eyes of the international community. It would show that we are neither Somalia nor Chad (although we might be getting there if things go unchecked) and can take care of our own mess. It is also practical because Justice is political and sometimes the pursuit of justice may need to be subordinated to political expediency in order to achieve better results. It is no secret that some of those who organised the killings early last year are the same ethnic princes (both in ODM and PNU) running the country right now. Dislodging these buffoons from power may end up creating even more instability in the country. Better have a local tribunal in which those behind the killings would be exposed and perhaps forced to pay some fine while preserving the current state of cautious stability.
But there is also a case for an international tribunal. 1500 (more or less) human beings, with families, were killed. They were denied the basic human right to life. Someone has to pay for this. Political expediency, it can be argued, should never guide the administration of justice. Only an international tribunal would guarantee an apolitical trial of the cold-blooded killers who planned and executed the slaughter of hundreds of their fellow Kenyans in Nairobi, Nakuru, Naivasha, Kisumu, Mombasa and other urban centres.
Either way, I think it is time that Kofi Annan leaked out the names of those implicated in the organization and execution of the killings. Expose them now Mr. Annan.