ICC: FRANCE IS INTERFERING WITH THE KENYAN CASES TO FOSTER ITS ECONOMIC & COMMERCIAL INTERESTS.

I can bet my money that the United Nations Security Council (UNSC) is going to reject the African Union (AU) motion for the deferral of the two cases facing President Uhuru Kenyatta and his Deputy William Ruto before the International Criminal Court (ICC). Time and history show that the United Nations is not about the furtherance of Justice, Democracy or Human Rights. It is an organization designed to further the political, economic and commercial interests of the 5 permanent members of the UNSC and other major economies of the world which fund the UN and its specialized organs. A few facts will illustrate that the UNSC often functions to promote the political and economic interests of its 5 permanent members rather than foster world peace and security.

Evidence of UNSC's neglect of the 1994 genocide in Rwanda

Between April and July 1994 the UNSC failed Rwanda. It failed to intervene to save thousands of lives even when information available was clear that mass murder was happening in an unprecedented scale in recent history. Historians and commentators have suggested that the UNSC was acting at the behest of France, a permanent member of the UNSC. 

Former French President Francois Mitterand with his erstwhile ally Juvenile Habyarimana of Rwanda in 1993.

Of the 5 permanent members of the UNSC, France is the most anomalous. Between 1990 and 1994 the French government supported and propped up the regime of President Juvenal Habyarimana in Rwanda. It provided a safe haven for the Akazu or the War Council that was the power behind Habyarimana’s government. The French also gave funds and logistical support for the training and arming of the Force Arme Rwandaise (FAR), the gendarmerie as well as the interahamwe and impuzamugambi militia groups which eventually executed genocidal attacks against the Tutsi minority and moderate Hutus. When the murderous Hutu regime fell to the Rwanda Patriotic Front (RPF), the FAR and huge populations of their sympathizers crossed into Eastern Congo DRC with the tacit logistical support of the French Government. In those camps the FAR organized the refugees into some form of a government in exile where they were fed and catered for the by the UN which had completely ignored the victims of their atrocities back in Rwanda. 

French forces with the Interahamwe militia in Gisenyi Rwanda in 1994

Interestingly it is the UNSC which allowed France to send its forces to Rwanda in 1994 under the guise of Operation Turquoise to essentially provide a safe passage to enable the genocidaires cross into Eastern DRC and eventually escape justice. As a result of this inflow of armed groups into its Eastern Provinces, the DRC experienced massive political instability and endured two non-international armed conflicts in 1996 and 1998. The situation almost turned catastrophic in 1999 and to forestall fresh genocidal attacks in the Great Lakes Region, the UN Office for the Co-ordination of Humanitarian Affairs (OCHA) in conjunctions with the UN High Commissioner for Refugees (UNHCR) launched the Great Lakes Operation (GLO) in early 1999 with the sole aim of resolving the issues relating to the Rwandan refugees caseload in Eastern DRC. Eligibility officers based in Nairobi recorded horrendous accounts of extreme suffering from the survivors of the Rwandan genocide. Almost all the survivors of genocide blamed the French government for supporting, training and arming the perpetrators of genocide and for sending its forces to provide a safe passage for the perpetrators to flee into Congo and escape justice. It is no secret that most of the political leaders who fanned the ideology of genocide in Rwanda fled to Belgium and France after the collapse of the Hutu regime.

Bodies of the victims of the FAR & the Interahamwe militia removed from Lake Victoria.

Currently, reports from New York suggest that French envoy and economic strategist Béatrice Le Fraper du Hellen is leading the onslaught against the African Union’s motion for the deferral of the Kenyan cases before the ICC. Being a member of the French government’s delegation to the United Nations she must have the express support of her government. It is paradoxical that a country that would readily host and protect genocidaires is now lecturing the African Union on matters relating to human rights, justice and democracy.

One of the key tenets of President Kenyatta and his Deputy Ruto’s campaign was ethnic reconciliation and harmony. The two leaders used the campaign platform to promote peace and harmony among communities that had hitherto been warring particularly in the Rift Valley. They managed to convince these communities to vote on one side and won the election. The two are the chief sponsors and guarantors of the peace and calm that is currently being enjoyed in the Rift Valley and many parts of Kenya. It would be naive for anybody to imagine that Kenya will remain peaceful if any of the two leaders is removed from the country by the ICC. Renewed ethnic strife in the whole or part of Kenya would definitely be a threat to national and regional peace and stability. The long standing strife in Somalia which has now spilled beyond its borders is a good example. This is an issue that UNSC should seriously take into account in deliberating the AU’s motion for deferral.

But the French see things differently. Their behavior is not surprising. It is symptomatic of their attitude towards Africa where they support weak regimes and exploit fragile ethnic differences between opposing groups thereby gaining a political hold over fledgling regimes and a chance to advance their commercial interests. It is no wonder that most of the countries that have experienced political upheavals and inter ethnic conflict in Africa are from the Francophone sphere. Rwanda, Burundi, Congo-DRC, Congo-Brazzaville, Ivory Coast, Chad, Mali, Madagascar and currently Central Africa Republic easily come to mind. 

Rwanda's defiance to death and despair

Currently Kenya, Uganda, Rwanda, Ethiopia and South Sudan are engaged in a number of multi-lateral infrastructural projects aimed at facilitating faster movement of good services to spur regional trade and development. It is no secret that a number of companies from France have expressed interest in some of these infrastructural projects. Kenya seems to be leaning towards the East precisely China thus denying France and other members of the European Union a chance to partake in these multi-billion dollar projects. This begs the question; is the France using the ICC cases and its permanent membership in the UNSC to arm-twist the government of Kenya in order to obtain preferential treatment in matters relating to international trade? Time and space will eventually answer this question. Is France ready to risk the security of millions of Kenyans just to obtain a comparative economic advantage?  Do the French care for the safety of Kenyan citizens who look up at the presidency to guarantee their peace and security?

Twitter: @DeCaptainCFE

MR PRESIDENT (UHURU KENYATTA), THIS COUNTRY NEEDS OF A BREATH OF FRESH AIR URGENTLY!

To the majority of Kenyans the most enduring legacy of the retired President Mwai Kibaki regime are the many infrastructural projects spread in each and every County. However, to many who were in the Public Service in December 2002 Kibaki achieved much more than this. Before the NARC regime assumed power most public institutions in Kenya were led by strategically placed home boys and girls who in turn appointed their trusted henchmen into pivotal positions within government. These skewed appointments were the bastion of cartels and syndicates which constantly fed the insatiable appetites of racketeers who virtually held the appointments, hiring, procurement and promotion processes in the public service hostage. Where I once served the catch-phrase by these homeboys and girls was that “in the race of life we run in the inner lane and everybody else must keep to the outer lane”. 

 

In early 2003 Mwai Kibaki did the unthinkable. Having campaigned and won elections on the pedestal of change and buoyed by the renewed enthusiasm of a population that was enjoying a sense of freedom after years of repression by KANU, the president started a purge in the top echelons of the public service. People who previously seemed invincible were routed of office, their henchmen were left exposed and the racketeers who depended on them to win lucrative government contracts started to close shop. At one point the Kibaki government dismissed all Procurement Officers in key government departments. Cowboy contractors and brief case suppliers closed shop and disappeared from town. The Kenya Anti-Corruption Commission (KACC) was revived and came alive with sting operations which mainly targeted Traffic Policemen and low ranking civil servants who engaged in abusive corruption which directly hurt the common mwananchi. Traffic policemen who previously took bribes openly were forced to change tact. Judges who had been accustomed to “negotiated” or “procured” justice were shunted out of office through the infamous “radical surgery” of the Judiciary. Public servants soon learnt that they did not have their jobs guaranteed for life. Civil servants accustomed to the culture of “hanging coats’ could not cope. They were either forced out or to grudgingly accept the offers of “golden handshakes” and retire early. Within a very short time Mwai Kibaki managed to induce a paradigm shift in the public sector and infuse a sense of service in government offices. Much of this good history of the Kibaki regime is often forgotten or overlooked owing to the unfortunate events and post-election violence that followed his swearing into office in December 2007.

Fast forward in 2013 President Uhuru Kenyatta and Deputy President William Ruto were elected into office on the platform of economic transformation; youth and women empowerment and digital revolution. After weeks of halting they picked fresh faces, mainly technocrats to serve in Cabinet. Majority of their Cabinet appointees are new to government and do not carry the historical baggage of the past. There was clearly a digital whiff of freshness in the process of picking the current Cabinet & Principal secretaries and this was greeted with a renewed sense of hope and enthusiasm by local and regional observers. President Yoweri Museveni of Uganda is on record praising President Kenyatta for breathing fresh air into the East African Community (EAC). Despite the drawbacks occasioned by their pending cases before the International Criminal Court (ICC) at the Hague, Netherlands, the unfortunate incidents of fire that gutted a section of the Jomo Kenyatta International Airport (JKIA) and the Westgate terror attack, it is easy to discern a sense of urgency by the Uhuruto regime. An urgency to fulfill and deliver on their campaign pledges. The agenda of supplying laptops to pupils in public primary schools is on course, the Uwezo Fund for the youth is up and running while preferential access to government contracts by youth, women and persons with disability (PWDs) has now been institutionalized by law. But everything ends right there. A general sense of pessimism is slowly enveloping these efforts. Why is this so? The ICC, run-away insecurity and unfortunate incidents such as the JKIA fire and the Westgate terror attack seem to be the defining issues for Uhuruto. 

Whereas Kibaki had people like the late “hurricane” Karisa Maitha and John Michuki who easily won public trust for openly reprimanding indolent public servants, none of the 18 technocrat Cabinet Secretaries in the current government is yet to earn such public confidence or engender a sense of responsiveness within government. Whereas the tone at the top appears to be good a cursory look around the country displays a sense of subdued hope. Within the rank and file in the public service everything appears to be business as usual. It is as if nothing changed or will change any time soon. There are no signs that there is a new sheriff in town. For example the Traffic Police Department has receded back to its old ways and the fairly lethargic officers watch indifferently as rogue public transporters break the law and reduce poorly maintained PSV Matatus into daily death traps for commuters. County Commissioners who are supposed to co-ordinate the affairs of National Government in the devolved units seem to be overwhelmed by the political hubris generated by Governors who more often than not behave like ethnic or regional Paramount Chiefs than service providers. It is still not crystal clear who is in charge of security at County level. Criminal gangs have taken note of the ensuing confusion and now freely roam the countryside kidnapping for ransom, raping, robbing, killing and maiming defenceless citizens. Cowboy contractors seem to be back in business if the number of abandoned construction sites all over Nairobi County and its environs is anything to go by. 

It is often said that a choir assumes the tone of the soloist. Uhuruto must change gear now, crack the whip and breathe fresh air into the lives of Kenyans. They are no longer strangers in government. By now they must have realized that there is a lot of dead-wood in the middle and lower echelons of the public service; economic saboteurs who view public service through the prism of personal aggrandisement rather than service delivery. Such people must be eased or socialized out of the public service. 

The promise by President Kenyatta to launch an internet site or a web page where citizens can freely interact and report incidents of corruption directly to him must be viewed in this light. Nothing impedes service delivery in government more than procurement fraud; bid rigging and bid fixing which force taxpayers to pay for goods and services at astronomical prices. Whereas Mwai Kibaki failed miserably in fighting collusive (high-level) corruption within government, the Jubilee government has a perfect opportunity to take up this mantra and create an enduring legacy. Unfortunate as it was, the Westgate terror attack has revived our sense of national unity and renewed support for government. The Presidency must seize the moment and set a new tempo of urgency within the rank and file of the public service. Those who will be reported to the President and non-performers must be dealt with mercilessly. This may just be the perfect antidote to the general pessimism creeping back into the minds of Kenyans. 

Twitter: @DeCaptainCFE

PUBLIC PROCUREMENT REGULATIONS IN KENYA: GIVING ACCESS TO THE YOUTH, WOMEN & PERSONS WITH DISABILITY

On 18^th June 2013 the Cabinet Secretary for the National Treasury published the Public Procurement (Preference & Reservations) (Amendment) Regulations 2013. 

The objective of these regulations is to accord the youth and other disadvantaged groups in Kenya preference in the supply of goods and services to the government. This is in line with one of the key promises of the Jubilee government to give the youth, persons with disability (PWDS) and women at least 30% of all supply contracts to the Government. The significance of these regulations is that the National Treasury and all the Treasuries in the 47 County governments shall be required to register and maintain a database for all Small or Micro-Enterprises (SME) or disadvantaged groups that wish to participate in public procurement.

The regulations also seek to favour local businesses by granting exclusive preference to local contractors who supply motor vehicles, electrical goods, furniture and other items which are fully assembled or manufactured in Kenya. Road works and electrical installations of below 1 billion, other public works of below 500 million and supply of goods and services of below 100 and 50 million respectively are now exclusively reserved for Kenyans. When these regulations come into effect the government and all its agencies will inevitably become the largest promoters of the motto, “buy Kenyan, build Kenya”.

The regulations also make it possible for procuring entities to divide supplies in lots of goods, works and services into practicable quantities which the youth, SMEs and other disadvantaged groups can afford.  A new Regulation 31 enjoins the National, County governments and other agencies of government to allocate at least 30% of their procurement to the youth, SMEs and other disadvantaged groups. To enhance compliance with this regulation these procuring entities will now be required to make budgets, issue tender notices and award contracts with at least 30% participation by the youth, SMEs and other disadvantaged groups. They will also be required to submit quarterly reports to the Public Procurement Oversight Authority for compliance audits. 

To participate in the new preferred and reserved public procurement   scheme, the youth, women, persons with disability (PWD), SMEs and other disadvantaged groups are required to register their enterprises with the relevant government body e.g Registrar of Companies, Business Names, CBOs, NGOs etc. The membership of such registered bodies may have 30% members at most who are not youth, women or PWD but their leadership must be 100% youth, women or PWD. Procuring entities will be required to pay for supplies made under this scheme within 30 days. A delay beyond 30 days requires the entity to make 50% part-payment and explain the delay in writing. 

Regulation 33 which deals with financing is of great importance. While young people often have the benefit of fresh ideas, energy and vigour they are seriously deprived while in competition with older people who have the advantage of time, experience and money. Procuring entities will be required to authenticate Tender Awards and Local Purchase or Service Orders (LPOs & LSOs) and enter into agreements with relevant financing institutions with an undertaking that the contracted enterprise will be paid through the account opened with the financier. Banks, Deposit Taking Microfinance Institutions (DTMs) and other lenders licensed by the Central Bank of Kenya must also come up with very innovative ways to help the government, the youth, PWDs, Women and other disadvantaged groups achieve the objectives of the new regulations. The youth, women and PWDs need these contracts but on the other hand government agencies require assurance that the contracted enterprises will perform their part of the bargain and with the requisite skill and expertise. One method to ensure satisfaction of reserved and preferred public procurement contracts may be through the doctrine of cession which is widely used in South Africa. 

The law has created a new spectrum of proprietary rights for the youth, PWDs & women by dint of their status in society. These rights are exclusive, reserved and can be quantified in economic and monetary value once a procuring entity has authenticated a tender award and issued an LPO or LSO. Once an enterprise owned by the youth, PWDs or women gets a contract to perform certain obligations for the procuring entity, such an enterprise acquires a right of claim for payment in anticipation by virtue of regulation 33. Consequently in terms of the doctrine of cession in anticipado, the future right to claim payment may be ceded. This way the youth, PWDs and Women owned enterprises (cedent) would retain ownership of the contractual rights but only surrender to a limited degree the ability to enforce those rights. An agreement to cede would be in writing and a formal document known as the Instrument of Cession will have to be executed. A cession as opposed to delegation or sub-contracting would be the best method to facilitate access to finance and specialist expertise by the youth, women and PWDs who want to benefit from the preferred and reserved public procurement under the new regulations. 

Twitter: @DeCaptainCFE