UNTRAINED KIAMBU FARM-HAND “INVENTS” HELICOPTER - Blame the Archaic Education System for lack of Innovation in Kenya

So, Onesmas Mwangi a 20 year old farm hard and a class 6 drop-out from Kiambu County has “invented” “created” or assembled a helicopter? In Kenya where Professors decorated with doctorate degrees in Engineering and other technical disciplines spend a lot of time in “Kamukunjis” agitating for higher pay! The same country where young men and women holding degrees (yes, the power to read, write and do) shuttle between towns and walk from office to office looking (tarmacking) for jobs? Data available from the Commission for University Education shows that Kenya has 22 Public Universities, 17 Chartered Private Universities and 12 Universities with Interim Letters of Authority. In addition there are 18 constituent university colleges and satellite campuses as well as 33 Technical Industrial Vocational and Entrepreneurship Training (TIVET) colleges. Although these institutions train thousands of graduates in almost every conceivable academic, technical and artistic discipline, Kenya is still mired in perennial problems of endemic poverty, disease, hunger and under-development. Why is a country with so many educated and trained people unable to eradicate or ameliorate problems such as poverty, hunger, preventable diseases, floods, drug and substance abuse inter alia? Or even better, why is Kenya a net importer of capital and consumable goods yet the country is not short of skilled labour or venture capital. The massive investments in government securities, corporate bonds and Initial Public Offers (IPOs) at the Nairobi Stock Exchange (NSE) display an enterprising society with a desire to achieve financial progress and socio-economic development. But what is preventing an industrial take-off in this country? A disparity between our education system and national development plans is to blame. 

The overly ambitious Vision 2030 lists education and training at the top of social welfare programmes intended to improve the quality of life for Kenyans. Its economic pillar ranks manufacturing and information technology among the six priority sectors that will spur economic growth, create employment and improve prosperity throughout Kenya. Now in its 5^th year Vision 2030 can boast of some infrastructural development projects but very little to do in terms technological innovation and manufacturing which are requisite for an industrial take-off. 

The Kenyan media is not short of stories of novel ideas and inventions mostly by mechanics, jua kali artisans and ordinary folks with very minimal exposure to higher education or training in universities and TIVETs. Peter Wambugu a former mechanic in Nanyuki created and patented “Wambugu Apple” with the assistance of the Kenya Agricultural Research Institute (KARI). Richard Turere a 13 year old boy from Kajiado County created a Light-emitting Diodes (LEDs) system to protect his father’s animal herd from marauding lions. These innovators used very basic materials available in their immediate environment to “create” or discover. Mwangi’s enterprise cost him Sh. 57,000/-, a very tidy sum for a farm-hard. Many professors and graduates in engineering, physical and natural sciences from our universities and TIVETS earn much more but can hardly demonstrate any meaningful creation or invention. The difference between jua kali inventors like Turere, Mwangi, Wambugu and the highly educated graduate engineers is that the former belong to a group which dares to dream. Shut out of the formal employment by an antiquated education system that emphasizes more on scholastic papers rather than the development of real-life skills, people like Mwangi, Turere and Wambugu are forced by circumstances to think out of the box and exploit their natural instincts and immediate environment to survive and progress. After all, necessity is the mother of invention. Our current formal education system hardly stimulates inventive reflection in graduates because it is highly oriented to passing examinations and acquiring academic papers. The government and private enterprise have not helped either. They insist on academic papers to hire their workforce. Innovation and entrepreneurship are accorded low or no consideration at all in formal employment. Highly educated graduates are therefore inclined to look for jobs rather than “work” yet agricultural and industrial production requires people with real life skills and a disposition to do actual physical tasks. The elevation of Technical Training Colleges into universities is therefore denying this country a skilled human capital segment which is vital for industrial innovation and production. 

 

The new government should drastically reform the education sector and ensure that there is a shift from time-bound, curriculum-based training to flexible and competency-based training and the re-orientation of our universities and TIVETs from supply–led training to demand-driven training. The likes of Mwangi, Turere and Wambugu could benefit from these reforms which are also envisaged by The Technical and Vocational Education and Training Bill, 2012 which is still pending in Parliament. When he was the Minister of the Higher Education, Science and Technology H.E. William Samoei Ruto the Deputy President had suggested a reduction in the number of slots and funding for courses in humanities and social sciences in public universities. He was right and now he can actualize this plan by ensuring that the person who is nominated to manage the Education docket is competent enough to re-engineer the current education system and make sure that all our schools and institutions of higher training produce graduates whose set of skills are properly aligned to the strategic themes under Vision 2030. 

Twitter: @DeCaptainCFE

WAITITU & SONKO WON THE NOMINATIONS FAIRLY, ITS DEMOCRACY AT WORK!

The sheepish reactions by the elitist urbane and pretentious middle class towards Ferdinand Waititu’s and Gideon Mbuvi ‘Sonko’’s triumph in the just concluded TNA party primaries for Nairobi County Gubernatorial and Senatorial contest are astounding. They generally point to one fact; that people who live in the comfortable and privileged parts of the City have no clue about life in the highly congested parts and are scared of losing the privileged near-lord status they currently enjoy. But are the people expressing shock and disgust at Waititu’s & Sonko’s triumph through social media right?

 I have severally registered and voted in Starehe Constituency since 1992, and I must admit I have never cast a vote in favour of Mr. Jimnah Mbaru. At the heat of campaigns his competitors always paint him as an arrogant, snobbish & elitist manager who belongs to corporate board rooms. The voters in parts of Eastleigh, Pumwani, Majengo and Mathare seem to have accepted this description of Jimnah Mbaru thus branding him the distinction of a perennial loser in Starehe.

What the people expressing shock and pouring vitriol against Waititu fail to appreciate is that Kenya is a democracy and the people who live in Mathare, Kibagare, Mukuru, Githurai, Kawangware, Umoja Kayole etc have equal votes to those who live in the leafy suburbs of Nairobi. In politics everybody has and is entitled to their opinion; however in an election only the votes that are cast and counted matter. The people who woke up and braved the cold morning chill and endured the hot afternoon sun have spoken. Waititu is their Governor of choice; Sonko their Senator! On the other hand it is unfortunate that Jimnah Mbaru is the Facebook & Twitter Governor, for the snobbish and pretentious elites who were perhaps too lazy to wake up or too busy to cue (read “waste’ time) and vote in party primaries! The good thing is that our Constitution guarantees the right to equality before the law in every aspect of life; thus a slum dweller’s vote is equal to that of a Karen tycoon!

Now, a counter-reaction to the pretentious urban elite. Your whining will not help; in fact it displays the disdain that the elitist wanabbes have towards the real workers who drive the economy of this City and the country! That you have resources and can afford to use acres and acres of cyber-space in social media to pour vitriol on fellow citizens who believe in and voted for Waititu and Sonko actually proves that you are motivated by an arrogant, dismissive, and snobbish attitude to besmirch, abuse and dehumanize voters in places like Githurai, Mukuru, Mathare, Embakasi, Kayole et al. This is an anti-thesis in democracy where basic rules ordain that one man has one vote; the tycoon in Karen has an equal voice with the voter in Korogocho! Or is that a very hard lesson?

And anybody who imagines that leadership has anything to do with academic papers is dead wrong! Research by international anti-fraud agencies has shown that most of the fraudsters in government, private sector and in religion have a lot of good academic papers but they spend 75% of their time plotting to steal and "rob" the poor. They are highly educated smart thieves and have the same kind of disdain the local elite are showing through social media towards poor people who vote for the likes of Waititu & Sonko. Actually any plot owner in a place like Embakasi is more likely to trust Waititu and Sonko more that Kidero or Mbaru with their vote, because they know they will not use some officialdom to grab and allocate it to some favoured well connected elite! After all, Waititu has been arrested many times fighting against grabbing of public land in Embakasi or the forceful eviction of poor people from the humble dwellings by well connected individuals. The poor who live in Nairobi slums are victims of the predatory state ran by the educated elite in Kenya and nobody should be surprised that they support Waititu and Sonko who show concern and empathy to their plight.

Finally, it is important to consider why the super-rich Marc Ravalomanana, former president of Madagascar lost power to a DJ and TV personality Andry Rajoelina. A study into how DJ Rajoelina got elected as Mayor of Antananarivo before ousting the president using people power would be a good lesson to people whining about Waititu and Sonko. In the same vein the political developments in Venezuela where the poor vote massively in favour of President Hugo Chavez and his VP Nicolas Maduro a former bus driver are good lessons to the elite in Nairobi. This may help the elites appreciate democracy and people's right and ability to choose their leaders! Politics is not like corporate boardroom contest where money and snobbery rule. Politics is about influence and successful politics is power. Waititu and Sonko are champions of the poor; they influence the poor in the neglected and less endowed parts of Nairobi and the poor voted for them the same way they do for Hugo Chavez in Venezuela.

NOMINATIONS FOR CHIEF JUSTICE, ATTORNEY GENERAL, DIRECTOR OF PUBLIC PROSECUTIONS & CONTROLLER OF BUDGET-Media is biased.



I have just read several editorial pieces on the above subject and I want to pose some questions to members of the press:

1. What is your understanding of sections 156(2), 157 (2) and 228 (1) of the constitution which states that "The Attorney-General…the Director of Public Prosecutions and the Controller of Budget shall be nominated by the President and, with the approval of the National Assembly, appointed by the President." These sections as read together with section 29 (2) of the Sixth Schedule (Transitional and Consequential Provisions) set out the procedure of filling the positions of the Attorney General, Director of Public Prosecutions and the Controller of Budget. I would imagine that these clauses are worded in very simple language and that they do not require reference to a legal dictionary for interpretation. In Law School , I was taught by Professors PLO Lumumba, Githu Muigai Esq, J B Ojwang and Kivutha Kibwana that the first rule of interpretation stipulates that at all times a provision of law ought to be construed in its plain and ordinary meaning. It would appear that in the instant case these clauses have acquired a new meaning to the highly esteemed men and woman of the media.

2. Section 166 (1) of the Constituition as read together with section 29 (2) of the Sixth Schedule (Transitional and Consequential Provisions) provides that "The President shall appoint the Chief Justice and the Deputy Chief Justice.......but until after the first elections under this constitution... the Chief Justice and the Deputy Chief Justice shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly," These provisions in their plain and ordinary meaning do not countenance the involvement of the Judicial Service Commission (JSC) in the initial appointment of a new Chief Justice for the Republic of Kenya under the present constitution. The JSC is not even properly constituted since a new Chief Justice is yet to be appointed. It is a legal absurdity that the current Chief Justice as well as two serving Judges, Justices Riaga Omolo of the Court of Appeal and Isaac Lenaola of the High Court and the Registrar of the High Court, Lydia Achode would want to be consulted or involved in the appointment of a new Chief Justice. This would be the first time in Commonwealth Jurisdictions that subordinate judicial officers sit in a committee to decide who should superintend over them. Their opposition to the nominations by the President is inherently illogical and informed by personal rather than legal considerations. It is imperative to note that that these judicial officers will subject to vetting by the JSC and the National Assembly. The Chief Justice will chair the JSC and one cannot fail to read mischief and inherent bias by some members of the JSC who want to determine beforehand who will supervise and vet them. The argument by Justices Evan Gicheru, Riaga Omolo, Isaac Lenaola and the Registrar of the High court is therefore flawed and flies in the face of the maxim that "a man shall not be a judge in his own course". It is even worse for Hon. Amos Wako the Attorney General to seek to be involved in the selection of a new Chief Justice and his own successor when he has constantly been cited by local and international human rights groups as the major sole impediment to reforms in the Criminal Justice system which has occasioned spiralling impunity in Kenya .

3. Who is the media holding brief for in this matter? You pieces are highly lopsided and devoid of any reference to the applicable law! Almost all your editorials on the above subject are slanted to give the impression that the President breached the Constitution in making the above nominations. Every other media house seems to have taken an editorial stance informed by one side of the Coalition Government that they were not consulted. A purely legal process has thus become mired in the miasma of highly divisive and emotive politics. Why do the media believe one side of the coalition and not the other? Why is the media so keen to create an impression that the PNU side of the coalition is the “mainstream” government and ODM the “internal” opposition? Why are some senior editors now asking the nominees to decline the nominations? Do members of the press have names of other people they want nominated for the four positions? The Hon. James Orengo, Minister for Lands was the first to cast aspersions into the propriety of the procedure for the above nominations. Since he is not one of the Principals, it would be proper for purposes of setting the record straight to ask him how he learnt of the names of the individuals nominated. The consultation stipulated in section 29 (2) of the Sixth Schedule (Transitional and Consequential Provisions) is not defined nor is its ultimate outcome stated. It is only an adjectival (procedural) requirement of law and the Constitution gives the National Assembly the power to determine the substantive issues relating the nominees. Whether the President consulted the Prime Minister or not is a question of fact which only the two Principals can shed light on. However the outburst by Hon. Orengo is evidence that there was a discussion of some sort and that names were floated for nomination to the above offices. What is discernible is that there was no consensus but again the law does not dictate that there must be consensus. Whether such discussion or consultation resulted in an agreement or disagreement is political issue which should be now addressed in the National Assembly where it rightfully belongs. The fitness of these Kenyans to hold these offices as required by Chapter 6 of the Constitution should also be addressed by the National Assembly. It is important for members of the press to report matters relating to the implementation of the question truthfully, fairly and objectively. Lawyers will always differ in the interpretation of the law. That is why courts exist. Adopting the views of one side as the ultimate gospel truth is fallacious.

"BABIES FOR CASH" SCHEME IN MUKURWE-INI IS RIDICULOUS & SLANDEROUS- We deserve and Demand an apology!!!

The story in the DN2 of Wednesday, November 24, 2010 page 2 alleging a " cash for babies" scheme in Mukurwe-ini has caught my attention. The number of calls I have answered over the story have triggered this response. From the onset, let me inform you that I was born and bred in Igana Sub-Location, Giathugu Location of Mukurwe-ini District. I also happen to be the Chair of the Board of Governors, Mweru High School which is the largest school in Mukurwe-ini South. I therefore interact with the people of Mukurwe-ini on a regular basis.

The alleged “cash for babies” scheme by the Councillor of my rural ward, Habel Kijana Mutahi is not only ridiculous, nonsensical and misinformed but also offensive and slanderous to the people of Giathugu Location in particular and Mukurwe-ini District in general.

Councilllor Mutahi is seeking cheap publicity by highlighting an issue of population dynamics which he has little or no understanding at all. The population statistics in the area cannot be explained on the mere basis that the number of recorded births is lower than those of the recorded deaths. This would be simplistic and ignorant the demographic dynamism in a growing economy. The fact of the matter is that there is a very high level of rural-urban migration from Mukurwe-ini by the younger generation. It is in fact easier for me and other people of my generation to organise a riika (age-group) meeting in Nairobi, Nyeri, Nakuru or Mombasa Towns than in Mukurwe-ini. Secondly due to the shrinking sizes of land which is reflected by uneconomically viable individual holdings, many of our relatives have migrated from Mukurwe-ini and other parts of Nyeri County to Laikipia, Nakuru and Nyandarua Counties in the last 20 years. These people have bought land and settled in those counties and many have no intention of going back to Mukurwe-ini. Thirdly, it is quite obvious that the net result of this massive migration has affected the productive segment of the population in Mukurwe-ini. My children and those of my age-mates are not born or registered in Mukurwe-ini but in places where we now reside. On the converse wherever my generation is bereaved we return the remains of the deceased home (to Mukurwe-ini) for internment.
The presumed high rate of poverty in Mukurwe-ini only exists in the fertile imagination of Councillor Mutahi. The Constituency Poverty Index is published annually by the National Bureau of Statistics and the Ministry of Planning and is used by the Constituency Development Fund (CDF) Board in the distribution of the CDF funds around the country. Mukurwe-ini appears in the group of the top 30 richest constituencies in the country. The high number of Health facilities in Mukurwe-ini and easy access to family planning services is good for the area and will help in population planning for sustainable development and in curbing the spread of the HIV pandemic.

These facts are well known to Councillor Mutahi and other leaders in the area. When this issue was first published by another newspaper, many people from Mukurwe-ini were not amused since it was slanted to project the residents of the district in bad light. It is very sad that the Nation and Councillor Mutahi have again sensationalised a serious matter like this without any statistical basis and with the sole intention of projecting the Mukurwe-ini District and its residents in negative light. It is demeaning and derogatory to project all the men of Mukurwe-ini district as drunkards and irresponsible. We deserve and demand an apology from the Nation and Councillor Mutahi.

MILITARY DISPLAY DID NOT BREACH THE SECURITY OF THE STATE!

Once again I am perturbed by the level of ignorance displayed by Mr. Odipo in his editorial in the The Standard of August 30, 2010. It is amazing that the Standard and other print media often allow their editorial space to be used for publication of commentaries on issues that writers have little knowledge or no understanding about. Mr. Odipo your analysis is wrong but you managed to display your ignorance on a matter which you have little or no understanding about. It is an insult to readers especially those who are trained and experienced on matters military.

For your information the leadership of the Armed forces of the Republic of Kenya is very much aware that our neighbours are constantly engaged in espionage otherwise known as the discrete active search for secret information regarding the state of preparedness of our security forces. This kind of espionage is carried out covertly and not overtly as you seem to suggest. The methods our neighbours use to collect such intelligence is not something I may want to discuss here for obvious reasons.

For intelligence information to be useful to any government, it has to be secret, current and relevant. If such information is readily available to the rest of the world, then it is of absolutely no value to any self-respecting government. What the military displayed on Friday, August 27, 2010 is just but things which any conventional armed force is expected to have. It is nothing new to the likes of President Lt. Gen. Yoweri Museveni, Lt. Gen Paul Kagame and General Omar al Bashir who are decorated soldiers. It was perhaps new only to novices like Mr. Odipo who do not know the standard arms and equipment any Mechanized Brigade or Division of a modern conventional force is required to have. Besides, a search on the Jane's Defence Weekly would have shown that Kenya is known to possess such equipment. It is no secret Mr. Odipo. The same dealers who sell military hardware to Kenya also sell to other countries including our neighbours.

Intelligence is also classified into various types. Strategic Intelligence is gathered by countries during peacetime to asses the political stability, economic and military capabilities of their neigbours as well as to asses their foreign strategic interest and bilateral relationships. On the other hand military field commanders require tactical or operational intelligence on the weaponry, the deployment and strength of the enemy force when there is war or declared open hostilities. It is also useful for military commanders to know the likely neutral or friendly forces in times of war. Such intelligence cannot surely be gathered in an open place like Uhuru Park!

Mr. Odipo, it is simplistic to suggest that our military commanders have endangered the country by displaying ordinary military equipment last Friday. Kenya has much more and what you saw is just a drop in the ocean and very commonplace. Finally, military intelligence is a function of combat which involves things like gathering, analyzing, and making use of information, including information about the territorial deployment and ground terrain over enemy forces and the ground. It includes espionage, physical observation, technical surveillance equipment, and reconnaissance using military scouts and reconnaissance units. Kenya is not at war with any of its neighbours and hence the display was basically intended to arouse feelings of nationalism among the ordinary citizens.

As a trained military officer who did the ropes and served time at the Kenya Air Force, I would like to urge The Standard and other media in our country to refrain from publishing security matters that may bring our military commanders into contempt or lower their estimation in the eyes of the public. Modern wars are fought not just in the theatre of operation but also in the hearts and minds of the people. Publishing articles which bring our armed forces and the aptitude of their leadership into question and disrepute could lower the morale of the soldiers, create fear and despondency among the civil population and jeopardize our overall national security and defence.

Twitter: @DeCaptainCFE

SECURITY DURING THE REFERENDUM VOTE: Jitters over Police Pay Rise.

“Human security is the primary purpose of organising a state in the beginning”

-Thomas Hobbes

Following concerns that communal and sectarian violence may erupt in some of parts of the country during and after the 4th August referendum vote, President Mwai Kibaki, his Security Minister George Saitoti and the Commissioner of Police Mathew Iteere moved fast to dispel fears of the possibility of any post-referendum violence akin to the January 2008 post-election violence. Despite these assurances five state commissions and a host of NGOs have warned of possible violence owing to what they have termed divisive political messages during the on-going referendum campaigns. But are these concerns and fears genuine?

Freedom from fear is the cornerstone of societal order and social cohesion. Communal and sectarian violence is socially disruptive. It causes communities to lose their traditional values and relationships. Massive human rights violations mostly occur during periods of political strife. Minority ethnic groups and migrant communities in the Rift Valley and Coast Provinces of Kenya are particularly vulnerable. They have recurrently suffered political violence and social displacement during national elections. This is occasioned by wayward politicians who exploit ethnic apprehensions as a basis for political mobilisation and competition. The majority of the areas identified as hot-spots for possible post-referendum violence are in the two provinces. Although communal violence is more likely during highly charged, competitive and divisive general elections, the ongoing referendum debate has turned out to be no different. Some politicians campaigning for or against the draft have used certain sections in the Chapters on Land and Devolution to create fear and despondency meant to demonise, isolate, and ostracise ethnic minorities and “immigrants” in their regions thus raising the prospect of post-referendum violence.

In the past, political violence in the Rift valley and Coast Provinces has been blamed on poverty, socio-economic inequity and lack of state capacity. The Kenya police force is empowered and has a cardinal responsibility to enforce the law, protect property and minimise civil strife. The police occupy a special position in our country since they are authorised to exercise the police power of the state. They enjoy the monopoly of the use of lawful force. It is actually a national honour to serve in the police or any section of the armed forces. Despite massive police deployment in the identified hot-spots, many people are still apprehensive that the officers will not adequately guarantee their security during and after the referendum vote. Is the scepticism justified?

For starters there is no such thing as absolute security. Security cannot be measured on a scale of quantity. Security is a perception by those who seek and receive protection by the state. Massive deployment of police officers in the identified hot-spots can create a sense of security but this is not sufficient. Policing is not just a function of deployment. It involves a range of activities such as arrest, search and seizure and use of or threat of use of force to preserve order. In a multi-ethnic state such as Kenya the use of deadly force must be applied cautiously since tension can spiral out of control if an officer from one ethnic group kills or harms a suspect from another community. To win the confidence of the consumers of their service, police officers must exercise their power impartially within a distinct and limited legal and territorial area of responsibility. Excessive use of force and overt acts of mutiny or insubordination by security officers creates a sense of fear and despondency among ordinary citizens. It also erodes the citizens’ confidence in the state’s capacity to protect them. This is the reason why the massive deployment of security officers to the identified hot-spots coming in the backdrop of open grumbling by junior police officers over their staggered pay increase is not reassuring enough. Some people have expressed fear that the officers may picket or go-slow during and after the referendum vote. Police officers should know that the majority of Kenyans support their supplication for better pay and working conditions. It is now their turn to reciprocate the enormous public support by selflessly providing security during and after the epic 4th August referendum. They have a sacred duty to ensure that Kenyans will not start fleeing their homes after voting. What the police will do or not do on that day will be of great historical significance. Their actions will either reinforce or shake the very core of our foundation as a modern state.

KADHIS COURTS- MEDIA MISLEADING THE PUBLIC ON THE FLAWED HIGH COURT RULING

I am very disappointed with the print and electronic media today. Reading and listening to their analysis and explanations of the ruling regarding the Kadhis Court by the High Court of Kenya yesterday, it is quite obvious that they are grossly misinforming the public on the ruling's impact on the ongoing review process. There is an obvious attempt by the media to distort facts and derail the ongoing review process.

First, this ruling is related to section 66 of the current constitution and has absolutely nothing to do with section 170 of the Draft Constitution. The ruling was against the defunct Constitution of Kenya Review Commission (CKRC) which is moribund and it does not affect or in any way bind the Committee of Experts which is the body seized of the current review process.

Yesterday’s ruling was against the independence constitution which was not enacted by the people of Kenya. It was imposed on the country in 1962 after the Lancaster Conference. The High Court is a creation of that constitution and has no power to declare its provisions or another body created by the same law unconstitutional. By declaring the Kadhis’ Courts Act unconstitutional, the High Court in effect opened an avenue for other parties to challenge the constitutionality of the African Christian Marriage Act, Cap 151 and the Hindu Marriage and Divorce Act, Cap 157. The saving grace is that the days of the current constitution are numbered. The first chapter, section 1 of the draft constitution declares that the people are sovereign and the enactment of the draft on August 4 will be the expression of the collective and supreme will of the people of Kenya. In contemporary constitutional jurisprudence, no court or state organ has the power or authority to usurp the supreme will of the people.

The ruling by the three judges is belated and just as flawed as the constitution which the people are hoping to repeal on August 4, 2010. It is not anything for the "NO" side to celebrate about, it was made without the presentations of the Muslim people in court yet they are the ones who stood to loose in the event of an adverse ruling as happened yesterday. It flies in the face of the principles of natural justice and cannot stand in the court of public opinion. It is foolhardy for any court to make such a novel ruling without according a hearing to the party(ies) that stand to be so adversely affected by the decision. Such a ruling lacks the legitimacy and moral force to elicit voluntary compliance from the Muslims of Kenya. It is the kind of ruling that could alter the socio-legal relations between the Muslims and Christians; the main faiths in Kenya. It should be dismissed or ignored at best by all Kenyans who have the interest of this country at heart.

WHY I WILL VOTE YES!

Good arguments for and against the draft constitution are likely to be lost in the mire of sensational politics, pious dogmatism, outright lies and use of excessive legalese by politicians, the clergy and legal experts supporting either side. I will attempt to climb down from the tower of legalese and explain in simple (lawyers say pedestrian) terms why I will vote “YES” in the referendum. For starters, a constitution is the mother of all laws and the basis of any political system. It regulates the rights of the citizens and the powers of those elected to govern them and should therefore express the will, interests, aspirations and expectations of all; workers, peasants, intellectuals and people of all nationalities and ethnic groups.

The impending referendum will be the most serious attempt to establish an autochthonous (home-grown) constitution by and for the people of Kenya . Chapter One of the draft entrenches the people’s supremacy and for the first time decrees that the three arms of government; the executive, parliament and the judiciary are subordinate to the sovereign will of the citizens. Officers and organs of the state at national and county level will henceforth exercise delegated authority for and on behalf of the people. Chapter Nine of the draft will fundamentally change the way state power is exercised in Kenya . Cabinet will be composed of professionals who owe their allegiance to the people. Currently, elected politicians appointed on the basis of perceived loyalty to the president serve in cabinet. They are not accountable to the people and their judgements are often blurred by the interests of their ethnic and geographical constituencies. Parliament (the Senate and the National Assembly) has been granted the power to vet and approve cabinet and virtually all other state appointments. Currently Parliamentary Standing Committees merely audit the process of exercise of power by the Executive and their perfunctory interventions are often a “mere act after the fact”. The right of recall in Chapter Eight; section 104 gives the people the right to sanction members of Parliament who act against the wishes of their constituents.

Chapter Eleven on devolution establishes the division of powers between the central government and devolved units. It recognises that there is considerable amount of diversity in respect of language, religion and culture among Kenyans and seeks to promote democracy, equity and national unity among regions and sections with varying geographical and economic characteristics. Chapter Seven; section 85 allows independent candidates to run for office both at national and county governments. These provisions and the history of President Barrack Obama should inspire economically and socially disadvantaged Kenyans who have historically been shut out of competitive parliamentary politics. County Assemblies and Executives will make it easier for marginalised groups and individuals to seek and access state power and cultivate national profiles just like President Obama did. The devolved governments will also replace the unelected, unresponsive and unaccountable provincial administration which has bestrode Kenya like a colossus since the colonial days. This will give people at the grassroots the taste of real power.

Chapter Two declares that Kenya is a republic where state power can only be assumed through successful competitive politics and not feudal antecedents. It stipulates that Kenya is a secular state where there is no state religion. Those arguing that the draft elevates Islam above other religions are mistaken. The entrenchment of the Kadhis’ Courts is not fundamentally a matter of faith but one of nationhood. The Muslim populations of the 10 mile Coastal strip-mwambao (then governed by the Sultan of Zanzibar) and the Sultanates/Chieftaincies of the former Northern Frontier District (NFD) were not fully administered as parts of the Kenya Colony prior to June 1963. They had an option to join the territory of an independent Kenya or other states. During the 1961-62 constitutional conferences to negotiate the independence of Kenya they lobbied for the insertion of the Kadhis’ courts inter alia as a condition precedent to joining Kenya . The Lancaster Conference of 1962 which drafted the Kenya Independence Constitution entrenched this right to scuttle the secessionist elements in the NFD and Mwambao. That constitution was and still is highly steeped with Judaeo-Christian philosophy of law and hence the entrenchment of the Muslims’ right to be specifically protected as a minority was legitimate. This is based on the principle of inclusiveness which did not diminish or reduce the rights of Christians or other groups in the law.

Chapter Three permits dual nationality thus allowing a Kenyan who is a citizen by birth to lawfully acquire the citizenship of another country. This will solve the problems faced by many Kenyans in the Diaspora and assist those who wish to export their labour resources to foreign countries.

Chapter Five establishes a framework to ensure that the process of allocation, adjudication, consolidation and registration of land is done equitably, transparently and sustainably. Section 68 seeks to regulate the minimum and maximum land holding acreages thus promoting sustainable use of land resources, inter-generational equity and conservation. It will prevent a few individuals from hoarding arable land to the exclusion of the majority. Young Kenyans who often claim to have been disinherited and de-franchised by the current ruling elite should be enthusiastic about this clause because it will guarantee them, their progeny and the future generations of Kenyans access to a place they can call home.

Finally, the Bill of Rights is very innovative. It elevates the basic freedoms and rights of a citizen above the interests of the state and or government. Section 23(2) spreads the jurisdiction of determining cases relating to violation of rights and freedoms to subordinate courts. This will ease the search for justice by economically disadvantaged people in rural areas.

The draft is passionately pro-life contrary to assertions that it will legalise abortion. Section 26 declares that life begins at conception and expressly criminalises the termination of such life unless there is need for emergency treatment or where the life of the mother is in danger. Criminal abortion does not happen because there is a law allowing it; but rather due to moral depravity or desperation. Whereas the clergy can legitimise their dislike for abortion on faith and morality, a sick woman, accident victim, survivor of rape, defilement and incest does not have that pleasure; it is often about their own life or dignity. In such situations abortion ought to be a legitimate choice and its morality or otherwise is not a matter for religious or cultural conjecture. It is a very personal choice and it is not a matter for religious zealots to decide but one that is entirely for the victim to make. The exceptions in section 26 (4) are therefore not matters of religion or morality; but rather medico-legal issues which the clergy should leave to health professionals who understand how best to save life in the event of an emergency.

KILOMETRES DON'T PAY TAXES; VOTERS DO!

Remarks by some politicians that one kilometer should be equal to one vote are not only ludicrous but ignoble too. In elementary law and political science classes, the professors teach that democracy is the rule of the majority with the consent of the minority. This is the very tenet of competitive politics as practiced in democratic societies. Republican constitutions embrace this principle through the principle of universal suffrage. In Federal democracies, like the USA and Nigeria, every federate state is represented in the Senate by two senators but the population of registered voters determines the relative strength of each state in the selection of the Chief Executive of the country.

These simple basics seem to elude some politicians and members of 4th Estate. The issue of equal or proportional representation is hinged on the state's authority to collect revenue and the mandate to guarantee territorial integrity and provide security and other basic necessities to citizens. And what constitutes a state; territory, citizens/people and a functioning government. Under contemporary international law a mass of land devoid of human habitation is considered as politically dead. This is why, uninhabited, unclaimed or ungoverned territories like the the political dead zone near the center of the Arctic sea are the focus of competing territorial claims between the United States, Russia, Canada, Norway, and Denmark.

Politics is about influence. Successful politics is power, and power is fundamentally about economics and money; who has what and what goes where. States obtain money through taxation authorized by a legitimate legislative authority. Law is essentially about the power relations between the rulers and the ruled. Elected representatives make laws and determine these relationships as well as codes and tariff rates payable to the state. Proportional representation is therefore premised on the state's legitimacy to make laws and the ability to raise tax revenue from the citizens; whether human or corporate. This was the basis of the famous pronouncement by the founders of the USA that, "no taxation without representation".

It follows logically that equal and proportional representation must at all times reflect either the majority will of the human citizenry or the economic might of the corporate citizenry of any given state. This is why in all countries today large community groups and corporate bodies hold sway over legislation and other affairs of the state.

The people of Nyanza, Western and Mount Kenya regions should not request anybody for more constituencies. It is their inalienable right to be properly and fairly represented in parliament where laws regarding collection and distribution of state resources are made. At the moment they are under-represented and every person with elementary education knows this. Those who suggest that every kilometer should be equated with one vote are jokers, kilometers do not pay tax; people do and hence the adage; one man one vote! Holding large swathes of barren, idle and unexploited territory should have little or no influence on the affairs of any civilized state unless that territory holds invaluable economic resources or the potential for economic exploitation by and for the benefit of the controlling state. This is basically why no single country is fighting to control or represent the Sahara ! Even the territory the POLISARIO is fighting for in Western Sahara is often described as economically useless, heavily mined and almost uninhabited to justify the apparent disinterest by the international community to resolve the long-standing conflict between the Saharawi and Morocco. Consequently, anybody who advocates for the highly populated constituencies of Kenya to remain under-represented should also campaign for residents of these regions to be freed from paying some taxes.

CONFLICT BETWEEN THE REGULAR & ADMINISTRATION POLICE: TOO MUCH FUSS OVER NOTHING.

The media is abuzz with reports of an apparent conflict between the regular police and their Administration police counterparts over allocation of resources and overlapping mandate. Is this conflict real or imaginary?

The two forces are creation of the Police and the Administration Police Acts, Chapters 84 and 85 of the Laws of Kenya respectively. Historically, the regular police has always enjoyed a preeminent position in matters of national security. The force was established in 1906 with the aim of providing security to the business class, the Kenya-Uganda railway and guarding the exclusive urban quarters of European settlers. The situation persist to date and section 108 of the Constitution ranks the regular police higher than the Administration Police in the hierarchy of the disciplined forces. The Commissioner of Police is a constitutional office holder answerable to the President whereas the Commandant of the Administration Police is a mere delegate of the Minister of State for Internal Security and Provincial Administration who is statutorily the commandant of the AP under section 3(2) of the Administration Police Act.

The regular police have an extensive mandate of enforcing all laws and regulations, protecting life and property, preserving peace, preventing and detecting crime and apprehending offenders to maintain law and order in the Kenya. On the other hand the APs main role is assisting government officers (read provincial administrators and other civil servants) in the execution of their lawful duties, preservation of public peace and national defence in the event of war or an emergency. The AP has a limited role in the prevention of crime and apprehension of offenders. Then how do their mandates overlap?

Section 2 of the Criminal Procedure Code, Chapter 75 Laws of Kenya provides in that a “Police Officer" means a Police officer or an Administration Police officer. The Penal Code, Chapter 63 Laws of Kenya stipulates that 'Police Force' includes the force defined in section 2 of the Police Act, and the Administration Police Force established under the Administration Police Act; and the term "Police Officer' shall be construed accordingly. Section 89 (4) of the Criminal procedure Code empowers police officers to prepare and sign a formal charge or complaint for commence criminal proceedings before a magistrate. Although section 19 of the Police Act and section 9 of the Administration Police Act authorise officers from the two forces to charge criminal offenders, this role is traditionally performed by the regular police who also formally investigate crime. The APs do not investigate crime and their role of preventing commission of offences and apprehension of offenders is auxiliary rather than conflicting to that of the regular police. Why are the two forces feuding then?

Different historical, philosophical and operational foundations and the rapid transformation of the AP are the real issues underlying the perceived conflict. Formed in 1929 as a district based tribal outfit to assist colonial administrators in the collection of tax revenue and prosecution of criminal cases before the Native Courts, the Administration Police (APs) force has over the years been transformed into a professional entity with a dominant national presence. The APs are now organised into easily deployable agile and flexible units which make them a common site all over the country. They are well spread out in the rural areas where they provide back up to the provincial administration. Their presence in rural villages and urban slums where they work hand in hand with chiefs provides an all pervading sense of security to underprivileged communities. APs also play the role of a territorial army in far-flung marginal pastoral areas and border districts. They live with the people and are well equipped and attuned to provide basic security and resolve minor social disputes. More and more communities are now turning to the administration police for assistance in dealing with serious offences such as armed robbery and drug abuse. This is causing jitters in the leadership regular police who think the APs tinkering with their territory.

In contrast the regular police was greatly involved in the arrest, detention and suppression of African nationalists at the height of the struggle for independence. The force was similarly used in the 1980s and 1990s to crack down on political dissidents who were demanding greater freedoms in opposition to KANUs one party rule. Many intellectuals and current and former members of parliament were arrested, detained or hauled into courts late in the evening by the infamous Special Branch then a section the regular police. The regular police are organised into rigid and reactive structures. They predominantly interact with the general public when carrying out arrests, responding to incidents of violent crime or quelling social and political unrest; tasks which they always perform ham-fisted. This history and management philosophy of the regular police has not endeared the force to the general public. The much touted community policing envisaged in the Kenya Police Strategic Plan (2003-2007) has essentially become a cropper since the general public has little or no trust and confidence in the regular police.

Pundits have argued that a merger of the two forces is the only panacea for this jostling over turf. This proposal is reactive, myopic and not strategic. Kenya is not the only country with law enforcement agencies that have overlapping mandates. The United States has well over 120 law enforcement agencies with the Federal Bureau of Investigations (FBI) and the Central Intelligence (CIA) being the most visible. The two agencies spar occasionally over turf and territory but this rarely gets into the public limelight owing to excellent managers who never let sibling rivalry by their minions get into the way of the overall objective of providing national security. Strengthening the AP does not necessarily weaken the regular police since the two play very diverse albeit complimentary roles. The two units only require excellent managers who can provide strategic transformative leadership and resolve petty invidiousness between their operatives for the overall national good.