Making Sense of Competing Visions of Kenya in the Jubilee & NASA Manifestos

This is a longer version of my column in the Standard this week.

This week the leading political blocs in the upcoming General Election released their respective manifestos. Jubilee sought to convince Kenyans that it needs another term in office to finish the job it began in 2013. The National Super Alliance Coalition (NASA) presented an agenda for the full implementation of the 2010 Constitution, focusing on equity and inclusivity. Both documents present competing visions of where we are as a country, and where we ought to go.

On one hand, Jubilee which sees the country’s problems as rooted in poor infrastructure and a lousy business environment. Its vision of government intervention in the economy is thus driven by the need to facilitate private investment (mostly through crony capitalism, but also through streamlining of the regulatory environment).

jubilee

But on the other hand is NASA, whose manifesto suggests a firm belief that the ambitious 2010 constitution has yet to be fully implemented; and that the country still requires structural transformation in order to guarantee equitable sharing of national resources, social inclusivity, and equality before the law and the government.

On a spatial left-right scaling, NASA’s manifesto is decidedly to the left of Jubilee. This is reflected in both the specifics in both manifestos and the choice of words in the documents. NASA (see image below) envisions a much bigger role for the government in the effort to transform Kenyan lives than does Jubilee (see above).

Both manifestos and visions for Kenya’s future have merits and demerits. Jubilee has a case to make for working with the country we have without re-litigating the political settlement of 2010 and its (partial) implementation since 2013. Restructuring society doesnasa not always yield the desired results, and often comes with instability. Their vision of doing their best to build infrastructure and letting hardworking Kenyans do the rest makes sense if one believes that you go to battle with the army you have. Their proposed vision of Kenya is grounded in the idea that a rising tide, even if marked by high levels of inequality, lifts all boats. Simply stated, it is a vision that prizes ends rather than means.

NASA’s vision of structural transformation is also valid in its own right. It prizes means and ends. Their plan for Kenya is informed by the idea that no society can continue to cohere if a section of citizens have deep feelings of structural inequality and discrimination. That we can have all the roads, water and sanitation, and bridges we need, but still flounder if a sizable proportion of Kenyans still feel like second class citizens in their own land. They also contend that inequalities today will breed inequalities tomorrow, and that a future in which only a small segment of the nation has access to the most lucrative economic opportunities and the best government services – simply on account of the language they happen to speak – is one destined to bring conflict. In a nutshell, NASA’s is a nation and state building manifesto that promises to not only increase the number of sufurias in Kenyan kitchens, but also create a new kind of nation-state devoid of the “culture of madharau.”

A priori, it is hard to say which vision fits the country best at this point in our history. Kenyans who have seen their lives improve over the last four years will most certainly want to eschew any radical changes — this is true, despite recent worrying headline economic numbers. Those who have seen their economic situation stagnate or worsen want change now. Looking at the numbers, there is ample evidence in support of either argument.

This is why, unlike some partisan observers, I see no reason to worry that the world would end if either Jubilee or NASA wins. The truth of the matter is that life will go on as before — with messy and contested politics at every turn, and high levels of economic inequality.

It is extremely hard to change or ignore social forces.

If Jubilee wins, it will be hard to continue ignoring issues of equity in perpetuity. Eventually, even diehard Jubilee supporters will realize that the crumbs that fall off the table are a raw deal. In the same vein, a NASA win will not necessarily produce a radical transformation of the Kenyan state. Once in power, the coalition’s leadership will most certainly be disciplined by our unwieldy political economy dominated by so-called cartels and our general structural conservatism.

As a student of political development, all I can say is that either path will lead to further consolidation of our political economy — either through further entrenchment of a hierarchical order (under Jubilee); or the widening of the economic upper class (under NASA).

Below is a list of what I consider to be the highlights of both manifestos. Consistent with the claims above, the Jubilee manifesto has specifics on many of its promises, while NASA’s largely sets out frameworks within which it will seek to transform Kenyan lives and the nation-state.

Jubilee:

  1. Investments in universal secondary education and 100% transition from primary to secondary school
  2. Completion of 57 large-scale dam projects to improve water access and irrigation
  3. Setting aside 1% of R&D funds to document and disseminate lessons and best practices in policymaking from the 47 counties
  4. Increase of electricity access to up to 100% of Kenyan households (from current ~53%)
  5. Complete several ongoing and planned transport and energy infrastructure projects (six-lane highway from Nairobi to Mombasa, Isiolo-Lamu road, SGR to Malaba etc) 

NASA:

  1. An ambitious nation and state building framework to guarantee equity and inclusivity
  2. Strengthening of the devolved system of government (including in areas of education, health, and agriculture)
  3. Investments in improving agricultural productivity (including for smallholder farmers)
  4. Expansion of social protection for households with orphans and vulnerable children
  5. Implementation of regionalized (cross-country) development plans

 

Three Important Narratives Driving Kenya’s 2017 Presidential Election

I think it is safe to say that Kenya’s 2017 election is a lot more about 2022 than it is about deciding who will be Kenya’s president over the next five years. And for that we have to thank Deputy President William Ruto. In 2013 Ruto defied all odds and served as kingmaker for Uhuru Kenyatta. In exchange, Kenyatta promised to support his stab at the presidency in 2022, assuming Kenyatta wins reelection this August.

At the moment the odds are in favor of Kenyatta winning reelection, either fairly or unfairly.

rutoWhich makes a lot of the campaigning in this cycle about building alliances and potential national coalitions for Ruto’s 2022 stab at the presidency. To this end three important narratives are emerging that specifically relate to Ruto’s quest to be Kenya’s 5th president.

  1. Stop Raila Odinga at all costs: The only man standing between William Ruto and the presidency is Odinga. A surprise Odinga win this August would deal a serious blow to Ruto’s presidential ambitions. As I have noted before, Ruto’s political following has remained largely transactional, and dependent on the constant flow of resources. If out of power these resources would certainly dry. In addition, Ruto has only recently acquired enormous wealth, which means that he still lacks the deep rootedness among Kenya’s economic elite that would afford him protection like it has for the Moi, Kibaki, Odinga, and Kenyatta families. A double loss of political and economic power would be too steep a fall to recover from. If Odinga loses, that will certainly be the end of his political career and will provide a wide opening for Ruto to raid his vote-rich strongholds in preparation for future elections.
  2. Have a negotiation-proof Kenyatta succession plan: It is common knowledge that Kenyatta’s promise to back Ruto in 2022 is not credible. Whatever his personal commitments to Ruto, Kenyatta’s political base will be independent enough to back candidates of their own choice in 2022. And as a former president, Kenyatta will have no power to compel political and economic elites to back the candidate of his choice. Which is why Ruto has sought to cement the credibility of Kenyatta’s promise by building a strong political party in Jubilee Party. JP is supposed to tie Kenyatta’s hands by coupling the political destinies of the Ruto and Kenyatta wings of the ruling coalition in both 2017 and 2022. If this scheme succeeds, the de facto party leader (i.e. Ruto) will have an enormous upper hand in influencing the public political behavior of elites allied to Kenyatta in 2022, perhaps enough to keep them faithful to Kenyatta’s public commitments. If this sounds familiar it is because a variant of this has been done before, by Moi through KANU following the death of Jomo Kenyatta in 1978.
  3.  Consolidate the Rift Valley vote: Ruto is no Moi, yet. Which means that he will continue to struggle to cement the Rift Valley vote, especially this year. Isaac Ruto might surprise him in Bomet (and parts of Kericho). And in the future Gideon Moi will certainly make a run for Elgeyo Marakwet, in addition to Baringo and Nakuru (and the wider Rift vote). All to say that, as a politician, Ruto is at once extremely powerful and vulnerable. He is powerful on account of being Deputy President with seemingly unlimited access to state resources. But he is also incredibly vulnerable, especially because his own backyard is littered with people who would soon see him tossed into the dustbin of history. In this sense he is no Kenyatta or Odinga, both of whom enjoy near-fanatical support in their respective bases and do not have any serious elite challengers.

All this to say that Deputy President William Ruto probably has the most to lose in this August’s presidential election. Which probably means that he will also work the hardest of any of the leading national politicians this cycle. And work hard he will, being one of the most electrifying national politicians on the stump (perhaps second only to Mombasa Governor Hassan Joho). This, of course, is good news for the incumbent Jubilee Party and President Kenyatta’s reelection prospects.

Uhuru Kenyatta ahead of Raila Odinga in the first post-nomination poll

Ipsos just released a poll in which President Uhuru Kenyatta leads Hon. Raila Odinga 48-42% among a representative sample of voting age adults. While this is not a particularly good showing for an incumbent with a few achievements to tout, the poll confirms Kenyatta’s frontrunner status. Furthermore, a 6 percentage point lead combined with his structural advantage in the turnout game mean that if the polls do not narrow any further Kenyatta will likely win in the first round come August 8th. In 2013 most public polls consistently over-estimated Odinga’s support by about 2 percentage points by not accounting for turnout patterns.

A few things other things are worth noting from the Ipsos poll:

  1. Polls have tightened over the last few months. As Odinga consolidates the opposition, his poll numbers have converged on Kenyatta’s. This is a trend worth watching over the next few weeks.
  2. The number of undecideds, especially in Coast, Eastern and Western regions, is rather high. This should worry Odinga. Again, Kenyatta has a structural advantage in the turnout game, which means that if Odinga is to have a fighting chance he must ensure that his strongholds register both high turnout rates and give him an even bigger share of their votes than in 2013. That they remain undecided does not bode well for Odinga’s chances. In the table below, Kenyatta’s poll numbers are close to his numbers both in final poll of 2013 and the official election results. Undecideds appear to be voters who sided with Odinga in 2013.Screen Shot 2017-05-31 at 9.30.40 PM.png
  3. This poll may be over-estimating Kenyatta’s support in Western region. In 2013 Kenyatta under-performed his poll numbers in Western region by a whole 29 percentage points. And so while his 23% rating in Western region may be a sign that Deputy President William Ruto’s investments are bearing fruit, I would not take these numbers to the bank just yet.
  4. Odinga has made significant gains in the Rift Valley region since 2013. One way for Odinga to force a runoff (or eke out a squeaker of a first round win) would be to peel off enough voters in from the North Rift. He appears to be doing that. His poll numbers in the region in 2013 were spot on, making his 32% rating in the region believable for now. Recent developments also suggest that he is gaining ground in Narok, Bomet, and parts of Kajiado. That should be a source of concern for the Kenyatta team.
  5. It is still a turnout game, and Odinga is trailing. The bulk of undecideds — in Coast, Eastern, and Western regions — appear to be likely Odinga supporters. While this may mean that they are likely to break for Odinga in August, it could also mean that they will remain undecided and stay home on election day. Hassan Joho, Kalonzo Musyoka/Charity Ngilu, and Musalia Mudavadi/Moses Wetangula have their work cut out for them.

While a lot may happen between now and August 8th, it is fair to say that Kenyatta is in a strong position. Odinga has several paths to victory, but success along any of those parts is dependent on the NASA coalition running a near-perfect campaign focused on both increasing turnout and running up the score in their strongholds. To this end the lack of enthusiasm in Coast, (lower) Eastern, and Western regions is definitely not a good sign.

The one thing that should worry Kenyatta is Odinga’s apparent gains in the Rift Valley region. If Odinga gains traction in Bomet, it is conceivable that he would also be able to peel off votes in Kericho. It is not that long ago that both Deputy President William Ruto had to camp in Kericho to avoid an embarrassing loss in a by-election. His preferred candidate ended up winning with 66% of the vote. In Bomet, incumbent Governor Isaac Ruto is backing Odinga. And while he will face a tough time swaying voters to Odinga’s camp, it is not far-fetched to imagine that he could bag around 40%. If the same happens in Kericho then two of the Rift Valley’s most important vote baskets will become swing. And Kenyatta would be in serious trouble.

Note: Nearly all the polls this cycle will not take into account any “likely voter models.” I will do my best to guestimate turnout rates based on passed voting patterns and other variables. 2026 out of 5484 contacted agreed to participated in this Ipsos poll.

Electoral Integrity Issues Ahead of Kenya’s General Election in August 2017

1. Raila Odinga won the 2007 presidential election, at least according to aggregate results from media houses. On a related note, President Kenyatta will most likely face a stiff challenge from a unified opposition, a fact that will put the integrity of the outcome in the August 8th presidential election front and center. Which is why it is a little scary that with just eight months left Kenyans are still fighting over the impartiality and preparedness of the country’s electoral management body, IEBC. It is also worth noting that there is a non-zero probability that Raila Odinga will not be on the ballot this August; and that this would do very little to reduce the likelihood of electoral violence if the polls lack integrity.

2. Kenyan governors have rejected the proposed manual backups for the electronic voter verification system in the August 8, 2017 General Election. This issue threatens to plunge the country into a period of heightened political tensions over the next several weeks, with the opposition having promised street demos if the government doesn’t soften its stance. There is still hope that cooler heads will prevail in the Senate and deliver a consensus outcome.

3. The Independent Electoral and Boundaries Commission (IEBC) is about to be reconstituted. Ethnic Regional balance issues remain. These are rather silly. Ezra Chiloba, the current IEBC CEO, is a very capable man and it would be a shame if he were to lose his job simply because of the lottery of birth.

4. KPMG will audit the voter register which currently has 15.85 million listed voters. Through a court challenge the opposition has temporarily stopped the award of the tender to KMPG. CORD is claiming that not enough stakeholders were involved in the tendering process. I suspect that the real reason is that CORD does not trust KPMG to do an honest job. It bears stating that private firms, including big-name multinationals, have historically not been above being compromised by sectional political interests in Kenya.

On a side note, most observers seem to think that the biggest political career on the line in 2017 is that of Raila Odinga. I disagree. The biggest political career on the line in 2017 is that of Deputy President William Ruto. Politically speaking, Ruto is between a rock and a hard place. He will wield immense political power, and have control over his political future, right up until the August 8th election is decided. Thereafter he will lose control over his political future.

If Kenyatta wins, he will immediately become a marked man. Five more years as number two will definitely grant him access to even greater financial resources and ability to bolster his political power. But it will also invite the envy of fellow elites wary of having to face a powerful and self-disciplined politician like only Ruto can be. In my view, Ruto has the potential to be Odinga and Moi rolled into one — i.e. fanatical mass support and incredible self-discipline and work ethic. Needless to say, this scares a lot of Kenya’s fat cats who’ve grown used to the absentee-landlord nightwatchman presidency of Kenyatta. There is also the small matter that Kenyatta’s base will likely not support Ruto in 2022 for this same reason.

If Kenyatta loses Ruto is toast. The music will stop. The cash spigot will be turned off. His ties to voters and grassroots leaders — which at the moment is almost purely transactional and dependent on incredible levels of personal generosity — will most certainly evaporate. His political base will likely be carved up by rivals, with Bomet’s Ruto and Gideon Moi hiving off their separate chunks for use as leverage for political favors and financial resources from Nairobi.

Ruto’s best chance at winning in 2022, IFF Kenyatta wins this year, is to convince Kenyatta to step down before his second term expires. That way Ruto can serve the remainder of Kenyatta’s term and run in 2022 as an unbeatable incumbent president. Show me a Kenyatta associate who would want to see this happen and I’ll show you a liar.

Of course there is also the possibility that Ruto looks down the game tree, does not like what he sees, and decides to make this year’s election a little more interesting than most people anticipate.

 

Harambee!! When did people stop caring about the optics of political action?

Screen Shot 2016-01-04 at 11.30.36 AM.png

That is the Deputy President, William Ruto, at a Catholic church harambee. Late last year Mr. Ruto donated about Kshs. 17m (USD 170,000) over the span of two months.

May be I have watched too many crime shows. But bundles of cash in a briefcase sounds and looks bad. Even with Catholic bishops in the picture.

Also, Kenya has a pretty sophisticated financial system with a population that is the most banked in Africa. Why not write cheques for these big harambee contributions? Without casting aspersions on the character of the Hon. Deputy President, it might be good for the overall health of the Kenyan financial system if it was possible to keep track of such huge financial transactions. May be Governor Patrick Njoroge can require that any donations above Kshs. 10,000 must be in the form of a cheque. Commercial banks have incentives to lobby hard for this, no?

Of course there is also the possibility that some banks are actually benefitting from this cash-based charitable industry — by dabbling in the business of cleaning up would-be donations. Just a random thought.

Also, does the government of Kenya offer any tax incentives for charitable donations? And how big of an incentive would be needed for generous politicians to start keeping track of all their harambee contributions?

Thoughts on the Uhuru Kenyatta Administration in 2016

This is from Kenya’s leading newspaper, the Daily Nation, addressing the president:

We acknowledge the fact that it has been a tough year for leaders across the world — what with global economic upheavals and terrorists wreaking havoc everywhere.

However, we reject the almost criminal resignation and negligence with which your government has responded to our national crises this past year. We need not recount the number of lives lost, the losses incurred by businesses and opportunities wasted for millions of Kenyans due to the incompetence of the Executive.

With the exception of a few family businesses and tenderpreneurs who raked in billions of shillings — thanks largely to political patronage — everyone is losing money in this country.

More on this here. Read the whole thing.

This is pretty direct, and articulates a narrative of the middle class’ general dissatisfaction with President Uhuru Kenyatta’s administration.

It will also have very little political impact.

First, the Kenyan middle class (the primary audience of the Nation) is tiny. Second, the same middle class is as much a hostage of identity politics as is the rest of the country (this is true of even for the Nation‘s editorial team) — and on this score Kenya’s demographic profile favors Mr. Kenyatta in the next election scheduled for August next year (All indications suggest that a breakup of the Jubilee Alliance ahead of 2017 is a low probability event). Third, there still exists a wide chasm between the middle and upper middle classes and the vast majority of working class and rural Kenyans (with the former group perpetually wondering why the latter group doesn’t vote for its interests). This is why identity politics continue to dominate even cosmopolitan counties like Nairobi, Kisumu, Nakuru, and Mombasa.

That said, here are some quick thoughts on the Jubilee Administration as it enters its fourth year:

  1. President Uhuru Kenyatta is a politician: That means that he will invariably only take action that is consistent with his perceived political interests — getting reelected in 2017; keeping his political lieutenants and the wider Jubilee coalition happy; taking care of his core base; et cetera. Reformists who imagine that the president can operate outside of Kenya’s political system are bound to be disappointed. And those who equate Uhuru Kenyatta to Daniel arap Moi are missing the point by miles. Moi micro-managed. Kenyatta II delegates (Kibaki and Kenyatta I delegated, but with relatively better monitoring).
  2. The Kenyatta Administration’s biggest problem is too much delegation without sufficient monitoring: Much of the criticism of the Administration tends to be packaged in the language of “political will” — if only Kenyatta REALLY wanted to change things. The truth, however, is that the president faces both political and organizational obstacles to reform. Administrators continue to stonewall reform at will; and the administration remains too top heavy for its own good. What needs to happen is a radical restructuring to empower the equivalent of “mid-level managers” in the Civil Service. This should be accompanied by a shift from an internal police patrol system of monitoring (characterized by an extreme form of siege mentality) to a fire alarm system — Civil Servants should be judged by what the public thinks of their work. And those found wanting should be fired. Incentives matter. Focusing on these administrative and organizational reform agendas, rather than the politics of “political will” might be more amenable to the president (see 1 above) and could yield good results — especially if they come with sufficient political cover for the president.
  3. State House is not focused on any key signature policies: Most governments tend to be judged by a few signature achievements. President Kibaki will forever be remembered as Mr Infrastructure. Thus far Mr. Kenyatta has not staked his legacy on any pet projects or policies — most of the big investments he has made (in rail, roads, and power) are on Kibaki legacy projects. This makes it very hard for him to sell any “successes.” Back in 2013 I proposed housing, agriculture, and education as possible areas in which the president could make significant improvements while building on Kibaki’s legacy. The lack of focus at State House creates the impression of an administration that dabbles in everything but closes on nothing. It also allows Civil Servants to shirk a lot. They are doing everything, but have nothing to show for it. The president would be better served if he told his staff that he will no longer show up at the launching of anything, and instead will only be available for commissioning of fished projects. Incentives matter.
  4. Perception is everything in politics: Narratives matter in politics. They also tend to be sticky and self-fulfilling. It is going to be hard for the president to sell his successes — including in energy and electricity access and continued investment in Kibaki legacy projects — if the public is convinced that his administration is failing on every front.
  5. What is William Ruto’s strategy? President Kenyatta has had a rough three years. By his own admission the war on corruption and malaise in the public service has proven to be a lot harder than he imagined it to be. But he is a Kenyatta, and will most likely be reelected next August. Ruto, the Deputy President, hopes to succeed Kenyatta in 2022. However, Ruto’s electoral success will hinge on the Administration’s performance over the next seven years. Also, Vice Presidents typically take the fall for the boss if things go wrong. It is not clear to me how Ruto would be a successful candidate in 2022 if the Kenyatta II era is judged to have been a failure (especially since it will be judged against the Kibaki era). Given this reality one would expect Ruto to do his all to make the administration work for Kenyans, instead of relying solely on patronage. Kenya has changed a lot since 2010; and will have changed even more by 2022. Performance will matter a lot more then that it does now, even for rural Kenyans. I am constantly surprised that this fact does not seem to bother the man from Eldoret.
  6. What to look for in 2016: The management of Kenya’s public debt (which will impact movements in domestic interest rates, with knock on effects on growth); continued investment in key infrastructure, including transportation and power generation (by year end nearly all primary schools in the country will be on the grid, a pretty big deal); a rebound in tourism (he has his faults, but CS Najib Balala is probably the best man for the job at tourism); and continued growth in construction (which grew by 14.1% in Q3 of 2015). I remain cautiously optimistic about the handling of monetary policy. The Governor of the Central Bank, Dr. Patrick Njoroge, is probably the most respected technocrat in the country.

Historically, growth in the Kenyan economy tends to slow down by about 0.5 percentage points during election years. This time is probably not going to be different. That said, I expect the economy to remain on a positive growth trajectory (above 5% growth p.a.) going into 2017.

On the political front, the role of the Governors of Kenya’s 47 counties will the biggest wildcard. Many of these mini-presidents have amassed financial war chests and created networks that will prove consequential in 2017. True to Kenyan form, a number of them are already founding their own parties (the true District Parties are back, with cash). The balancing effects of governors (vis-a-vis established national politicians) creates a reality in which no one is fully “in charge” in the Jamuhuri, a fact that comes with all sorts of frustrations and fears. But sometimes that is a good thing. Especially when Kenyans and their indefatigable biashara habits are involved.

Lastly, expect to see more hard-hitting criticism of Mr. Kenyatta in the Kenyan press in 2016, much of it inspired by Kenya’s deep-seated Tanzania envy. If Tanzanian president John Magufuli maintains his reformist zeal there will be a lot of pressure on Mr. Kenyatta (#WhatWouldMagufuliDo?). Very few Kenyans will care to remember that the two presidents serve under two completely different constitutional and party regimes.

Happy New Year!

Corruption and Punishment

This paper contributes to the growing literature on anti-corruption accountability by comparing individual decision making under different norms and institutions. Employing an experimental methodology, I examine how the propensity to report corruption differs between Northern and Southern Italians, two groups that experience very different levels of corruption in everyday life. Further, the experiment measures behavior under two different institutional environments: a “strict enforcement” condition where reports always result in sanctions against perpetrators, and a “lax enforcement” condition where 50% of reports are ignored. I find no difference in the behavior of Northern and Southern Italians in the lax enforcement condition, but in the strict enforcement condition, Southerners are much more likely to denounce wrongdoing, while the behavior of Northerners remains unchanged. These results demonstrate that exposure to corruption may strengthen accountability norms, but only in the presence of high quality enforcement institutions.

That’s Nan Zhang in a fascinating paper on corruption in Italy.

As recent cases in the New York state legislature, Illinois, and the expense scandals in the UK Parliament demonstrate, the difference between OECD states and the developing world when it comes to corruption is simply about enforcement. It’s not, strictly speaking, because of a fundamental difference between OECD and non-OECD states in the pro-social tendencies of politicians. There are no good politicians or public officials, just properly incentivized ones. Most OECD states have managed to reduce corruption by having a credible deterrent in the form of functional judicial systems. Corrupt people go to jail.

Screen Shot 2015-05-08 at 11.03.49 AMFor instance, over the last 15 years Kenya has seen a surge in the reporting of corruption scandals but to little effect. The most recent scandal to break is one involving the deputy president (pictured above), who allegedly inflated a hospital construction project by Kshs 11b (US $115m!!!) Since no one gets punished, the fear of getting exposed has little deterrence value. It is common knowledge that “everyone” is corrupt and gets away with it. In such an environment, you are a sucker if you are clean.

The obvious lesson here is that it is not enough to set up anti-corruption commissions. What reduces corruption is the credible threat that the corrupt will be punished.

H/T Tiago Peixoto.

The ICC’s case against Uhuru Kenyatta

Following the collapse of the case against President Uhuru Kenyatta of Kenya, ICC prosecutor Fatou Bensouda made public her case against Mr. Kenyatta for his alleged role in the 2007-08 post-election violence in Kenya. More than 1300 people died and 300,000 were displaced.

You can find the public [redacted] version of the prosecution pre-trial brief here.

UPDATE: And here is the defence’s response.

Kenya Security Laws (Amendment) Act, 2014

President Uhuru Kenyatta assented to the Security Laws (Amendment) Act, 2014 (archived pdf here). Despite widespread opposition from a large section of the Kenyan public, amendments therein are now the law of the land. The law itself is a mixed bag. There are some good parts that are meant to streamline the criminal justice system. But there are other parts that will certainly be abused by politicians and over-eager security agents, and could lead to a drastic reduction of civil liberties in Kenya.

This is how the bill was passed:

[youtube.com/watch?v=lc0F7AG-3to]

Members of Parliament and Sergeants-at-Arms guard House Speaker Justin Muturi as he reads the motion to pass to the bill.

Civil Society groups in Kenya, and a section of Members of Parliament, have vowed to challenge the constitutionality of the Act in court.

Will the challenge succeed? The simple answer is I don’t know. The Kenyan Supreme Court leans to the right, and is likely to defer to the executive (and its allies in the legislature) on matters related to security. Plus my bet is that if you polled the law a good chunk of Kenyans would support it. It targets “terrorists” and “criminals.” The mainstream churches in Kenya have also come out in strong support, in no small part because suspected terrorists have made a habit of attacking packed churches along the Kenyan coast.

The judicial review process is unlikely to set aside the entire statute. The petitioners will be better served to focus on key clauses that are unconstitutional and ask the judges to strike those out. But I should reiterate that the judges are likely to defer to Parliament and the executive on this one.

From a legislative studies perspective, what is worrying is that in order to get the law passed  State House essentially told the National Assembly, “Trust me. I need these powers to secure Kenyan lives and property. And I will not abuse them. Trust me.” And then Parliament capitulated. There was no debate over the State’s total failure to use existing laws to prevent and/or deter crime. Or the corruption and gross ineptitude that ails the security sector. Instead the executive was rewarded with even more power, secrecy, and ability to silence criticism from the media. All open to cynical abuse.

What Parliament forgot is that that there are no good politicians; only constrained ones. And that if unchecked anyone and everyone will abuse power. It doesn’t matter whether they are Pol Pot or the Pope.

Kenya Security Laws (Amendment) Bill 2014

Here is a pdf copy of the Kenya Security Laws (Amendment) Bill 2014.

The proposed amendments will, broadly speaking, curtail the freedom of speech and association, and limit media coverage of security related stories. They will also cut into the independence of the Kenya Police Service by granting the president the powers to appoint and fire the Inspector General of Police. Presently an independent commission picks a list of candidates from which the president chooses the IG. Lastly, the law promises to resurrect the position of the all powerful internal security minister with broad discretionary powers.

All in the name of keeping Kenyans safe from foreign terrorists, and themselves.

There are a few good things in the proposed law, including the sections that clarify the roles of the office of the Attorney General and the Director of Public Prosecutions (DPP); and those that limit judges’ discretion in the handling of cases involving terror suspects.

Despite the dubious constitutionality of some clauses in the bill, I bet a majority of Kenyans would support it in a poll. For that we have to thank the recent uptick in terror attacks and fatal communal conflicts. This year alone hundreds of Kenyans have died from such attacks.

That said, if you ask me the problem of insecurity in Kenya is not simply a result of restrictive laws that limit the government’s ability to pursue and prosecute criminals. It is a problem of a corrupt police force that takes bribes from petty criminals, poachers, drug dealers, and terrorists, alike. It is a problem of an increasingly unaccountable intelligence and military securocracy that is both fighting jihadists in Somalia and trafficking in charcoal and other goods, the proceeds of which benefit the same jihadists. It is a problem of an ineffectual intelligence service that instead of diligently doing its homework prefers to carry water for foreign agencies, regardless of the domestic consequences.

And finally, it is a problem of an elite political class that wants to have its cake and eat it. They want a criminal justice system that protects those who steal from public coffers but punishes chicken thieves. A system that protects poachers and drug dealers but nabs terrorists and armed robbers. At some point something will have to give.

Iko shida.