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.

AL-SHABAAB: LET SOMALIS BE, IT IS THEIR BABY, NOT KENYA’S

I wish to comment on the numerous editorials by journalists in the mainstream media on the current fighting in Somalia. Allow me to do so passionately because I am a trained military officer who did the ropes, served his time and left the military early to pursue other interests.

First I am amazed at the level of ignorance displayed by many Kenyan journalists on military issues and matters regarding war. I thought that all journalists are taught the basics on every conceivable subject that they write on, but anyway that is for another day.

Many (journalists) seem to support the idea that Kenya should send it armed forces to Somalia to fight the Al-Shabaab. My question to them is, go to war over what and why? What dispute does Kenya have against the group or the Somali populace who support the militia? What would be the justification of waging war against a loosely held group of outlaws seeking to overthrow the government of Somalia? The current war in Somalia is an internal armed insurrection that does not warrant intervention by a neighbouring state. It is not Kenya’s problem that the fledgling government in Mogadishu is too weak to deal with an internal armed insurrection, neither is it the responsibility of the Republic of Kenya to shore up a government that the Somali people consider to a puppet of some foreign power(s). Al-Shabaab cannot thrive if the citizens of Somalia or a sizeable population thereof do not believe in its cause. The militia is thriving because there are certain sections of the Somali populace who are persuaded by its declared cause and are offering active support and comfort to its members and fighters. A militia force is not a conventional static force; it is ever active and lives and thrives amongst a complacent populace and “eats” from them.

Al – Shabaab and many other armed groups in Somalia have raised the issue of legitimacy against the government of Sheikh Ahmed. This is a complex matter and as you rightly put it, even Ethiopia failed to pacify the warring factions in Somalia over a two-year period. For starters, it is important to know that when you are fighting an internal armed group, it is not enough to capture territory and grounds of tactical importance; you must win the war in the minds and hearts of the people too. Ethiopia failed to do so and this is why the issue of legitimacy has stalked the Somali Transitional Federal Government since Ethiopia’s invasion. The United States is facing similar issues in Iraq and Afghanistan despite its enormous military might. I highly doubt that Kenya would fair any better compared to Ethiopia. It is important for those who are propagating for war against Al-Shabaab to understand that no government can competently administer a territory if there is lingering question over its legitimacy. This is a question which Somalis alone must address and answer alone. The TFG has consistently failed to marshal international support and recognition owing to lingering questions over its legitimacy. Their war over the legitimacy of the TFG is their war and not Kenya’s. Kenya’s intervention will not solve this issue; it might even escalate it considering that Nairobi is the rear tactical and logistical base for all of Somalia’s politicians, militia commanders and their backers.

Secondly, just suppose Kenya were to intervene in Somalia to fight the Al-Shabaab and shore up the TFG; where will be the front? Many war mongers do not seem to remember that Kenya has a 1200 km frontier with Somalia which is largely un-policed and highly volatile. What ground of tactical importance would our armed forces seek to hold against the militia? A militia group is not static or encamped force; it is a highly mobile, agile and versatile amorphous force which periodically mutates depending on the nature of the threat at hand. It is obvious that Kenya would be stretched to protect its civilian population and installations against retaliatory incursions by the militia. How would Kenya deal with the armed and non-armed members of the group? Would they be considered prisoners of war and therefore entitled to the privileges accorded to POWs under the Geneva Conventions? And if so, where would they be incarcerated during the war period? Or would they be handed over to the TFG for “trial”. Before anybody beats the drums of war, they should think about the withdrawal strategy. Al-Shabaab is fighting a proxy war funded by foreign powers and wealthy merchants and is likely to stake it out as long as the purse strings remain open. Unless Kenya is willing to put itself in a similar position as the USA is in Iraq and Afghanistan, then war against Al- Shabaab is not a worthy venture.

Finally, any support for the option of war against Al-Shabaab should be accompanied by a personal declaration that one is willing to be conscripted or have his children, siblings and other relatives conscripted for war. Anyone who imagines that the current standing Kenyan army will be sent to be the front to fight Al-Shabaab is an ignorant day-dreamer. Read the Armed Forces Act, Cap 199 well and you will know that a declaration of an international armed conflict between Kenya and another state will be followed immediately by massive conscription of young people who will be sent to the war front to become cannon fonder. Any volunteers? I have a reserve liability of about 15 years and it is likely that I would be called out for military service in the event of a long drawn war. I would not honour such a call from the Commander-in-Chief because I hold the view that going to Somalia to fight any group is an unjustifiable misadventure which will serve no veritable cause apart from massaging the egos of war-mongers who will be watching the children of the poor die in the war front from the comfort of their villas.

Twitter: DecaptainCFE 

IS JUSTICE MINISTER GUILTY OF FAILURE & COLLECTIVE LETHARGY IN THE WAR AGAINST CORRUPTION?

Power is sweet, truly sweet, but only to those who have it!
- Anonymous

Until last Friday I reckoned myself as an informed Kenyan well-versed at least with matters legal and strategies for the detection, investigation and prosecution of fraud and corruption. I was rated otherwise by none other than the Hon. Martha Wangari Karua, EGH, M.P., Minister for Justice, National Cohesion and Constitutional Affairs.

According to official government circulars and websites, the Minister for Justice, National Cohesion and Constitutional Affairs is responsible for constitutional matters, legal policy, anti-corruption strategies, integrity and ethics, human rights and social justice as well as the development of the overall policy for the administration of justice in the Republic of Kenya. The minister’s mandate also extends to the general superintendence of the Kenya Anti-Corruption Commission (KACC), the co-ordination of the Governance, Justice, Law and Order Sector (GJLOS), the Public Complaints Standing Committee (Ombudsman) and the Kenya National Commission on Human Rights inter alia.

Even with such an elaborate and glamorous job description Minister Martha Karua does not think it is her business to fight or direct the fight against corruption in Kenya. And she put this down in writing. Last Friday I had the temerity to interrupt Minister Karua’s peace and remind her of her duties to the taxpayers of Kenya. In turn I got a stern response characteristic of the minister’s public demeanour. My verbatim text message to the minister read “Waziri, KACC, Police, AG & Judiciary have failed to reign in corruption under your watch as Min. for ‘Justice’. Many are losing faith in you, pse act now!” Her response was swift and stern; “You are ignorant, none is under me police are under Saitoti, AG is a Minister like me and Judiciary is independent. My Ministry formulates policy.” (The text was devoid of punctuations but I have put them to ease comprehension). Curiously the minister did not mention KACC in her response. Or has KACC been moved away from her docket? May be! To her credit, she has in the past scathingly attacked the anti-corruption outfit and even demanded the resignation of its Director and Chief Executive Justice (Rtd) Aaron Gitonga Ringeera over alleged incompetence. I worked for KACC in 2006 and I have very strong views on the retired judge’s leadership and management style but that is a story for another day.

The import of the minister’s text message is a glaring shirking of responsibility and admission of collective lethargy in the war against corruption in Kenya. Perhaps the learned minister does not understand the plain and ordinary meaning of words and phrases like “policy on administration of justice”, “anti-corruption strategies”, “integrity and ethics”, “human rights and social justice” and “Co-ordination of the Governance, Justice, Law and Order Sector (GJLOS)”. But how can she? She is a powerful person and does not appear before apathetic magistrates, require the protection of irascible policemen and ravenous chiefs or feed on subsidized maize meal. Or maybe she is now too engaged with her ambition to become president that such mundane matters make little sense to her.

Minister Karua would like “ignorant” taxpayers like you and I to believe that her ministry is not responsible for the fight against corruption because she does not control the Kenya Police; the Attorney General is her Cabinet colleague; the Judiciary is independent and her work is just to write academic papers only fit for the shelves. She is admitting what we all know; that no single minister in the Grand “Collusion” Government has the spine to fight corruption because they are all partakers and beneficiaries of the vice. She is admitting lack of a strategic intra-government policy to fight corruption and failure to advise the President, the Prime Minister and her cabinet colleagues. This is gross dereliction of ministerial duty.

Perhaps I am just an ignorant busy body as the minister suggests. You see, I hold a Bachelor’s degree in Law from the University of Nairobi. I am an advocate of the High Court of Kenya and I have a Postgraduate Diploma in Human Resources Management. I am a Certified Public Secretary (Kenya) and a Certified Fraud Examiner and an MBA candidate at Jomo Kenyatta University of Agriculture & Technology. Professionally I am the Chairperson of the Association of the Certified Fraud Examiners (ACFE)-Kenya Chapter, member of the Law Society of Kenya’s Human Rights and Ethics Committees, Assistant Politics Editor (Law) for KenyaImagine and member, Institute of Certified Public Secretaries. Privately I chair the Board of Governors, Mweru High School- Nyeri; sit on the Board of Governors, Giathugu Secondary School-Nyeri and serve as member of the Executive Committee of the Public Service Club. Yes, that is the résumé of an ignorant taxpayer according to the Member of Parliament for Gichugu. I have no idea how she rates her constituents most of who are contemporaries of my good old parents.

Minister Martha Karua needs to do one thing; climb down from the lofty tower of legalese and join the ordinary taxpayer who rides a matatu from Dandora to work in the morning and goes back home in the evening the same way. May be she will then understand what “justice” is and perhaps appreciate the role of her ministry in the eyes of taxpayers. It is a long shot, but it is possible. You can do it Waziri!

NAKUMATT DOWNTOWN FIRE SAGA & CORPORATE RESPONSIBILITY

From details collected from here and there; it is now emerging that the management of Nakumatt Downtown may be culpable of serious dereliction of duty and criminal negligence which led to the unfortunate death of innocent shoppers.

That security guards may have been instructed to "close the exit doors" to restrain shoppers from leaving the mart with unpaid for goods and merchandise. This most callous behaviour is reminiscent of the arrogance of merciless, faceless corporate bodies that have little regard for human life and operate on the principle that "cash is king".

Consumer protection and physical safety of customers, patrons and clientele are the cornerstones of retail chain operators. The defensive measly whispers we are hearing from the top management of the supermarket chain regarding the safety precautions in their establishment are untenable.

Consumerism is not sustainable in a market that operates without regard for basic rules relating to human safety. We must do something to save ourselves against these kinds of businesses. For a start we need to raise the awareness of our people. As managers we should not rush to blame the government; read the Factories Act, the Fire Act, the Public Health Act, the Building Code and Retail Business Premises By-Laws of the City Council in detail. And then start an active boycott of all chain retail markets that do not comply with these laws and regulations fully. Tell your workmate, neighbour, child, friend, relative etc create a chain of informed people; refuse to buy goods without a bar code and quality and standardisation mark of the Kenya Bureau of Standards.

For a start, I am boycotting the NAKUMATT chain until the management of the retail group allow all their premises to be inspected and/or get issued with PUBLIC HEALTH & SAFETY CERTIFICATE by the City Council. Do something too!

YES, TOGETHER WE CAN reclaim our nation from these merchants of death and their political benefactors, THE TIME IS NOW!

THE KENYA COMMUNICATIONS (AMENDMENT) BILL, 2008: MEDIA IS TO BLAME TOO.

On 10th December, 2008, Parliament dealt a blow to the freedom of press and expression in Kenya by passing The Communications (Amendment) Bill, 2008. MPs were mainly driven by vengeance over the media’s sustained coverage of the taxation of their hefty salaries and allowances.

But is the media fraternity entirely blameless? The media celebrated in September 2007 when Hon. Mutahi Kagwe, then Minister for Information and Communications withdrew the same bill from Parliament citing the need for further consultations and introduction of clauses to deal with cyber crime and protect the optical fibre cable. My commentary on this Bill was published in the Business Daily on 4th September, 2007. (http://www.bdafrica.com/index.php?option=com_content&task=view&id=2831&Itemid=5821) Instead of using the window created by the withdrawal of the bill to highlight its weaknesses and lobby for the removal of the offending clauses, the media concentrated on political sideshows.

Over the years journalists in East Africa have failed or resisted attempts to establish an effective mechanism for self regulation. The results have been catastrophic. In Kenya wayward journalists have elevated politicians to the level of demigods through slanted coverage. In fact political content takes up most of the editorial space in the electronic and print media. My friends in the media openly admit that prominent politicians always have the press in tow because they generously tip (read bribe) reporters for favourable coverage. Any wonder that all media houses in East Africa often ignore professionals and businesses who sustain them through advertisement? I have been a victim of unethical conduct among journalists too. When invited to a purely professional event, reporters first inquire about the guest of honour. They display enthusiasm and ask for details when it is a politician depending on his or her perceived prominence. If it is a professional or a corporate leader, they display little enthusiasm even when a fortune has been spent on advertisement in their media houses. Coverage is also not guaranteed unless it has sensational political content. And even stranger, some ask for tips to facilitate publication of a good topical issue. I have been asked for bribes by journalists in Kenya, Uganda and Tanzania. In Tanzania, only ThisDay (http://www.thisday.co.tz/News/956.html) published a regional seminar on trans-national crime and money laundering attended by senior government officials in November 2006. In Kenya and Uganda, similar events attracted a paltry number of journalists and did not even get a mention in the local dailies because I refused to “tip”.

It is the prominence accorded to politics by the media in East Africa which has cultivated unparalleled arrogance in MPs giving them a sense of invincibility. MPs who often bribe reporters believe that they can ride roughshod on them and everybody else. I know that politicians bankroll journalists for favourable coverage and I have names of several reporters across all the media houses in Kenya. Some do not even hide, they brag about it.

In my capacity as an Advocate, Chairperson of the Association of Certified Fraud Examiners (ACFE) - Kenya Chapter and Member of the Human Rights Committee - Law Society of Kenya I wish to warn the media fraternity in East Africa that what has happened in Kenya is likely to be replicated in the entire region. For now, reduce the level of political content and ignore MPs for one full month. This will put them in their right senses and plunge their arrogance. Accord more space to business, professional and societal matters and cite professionals rather than politicians as opinion leaders on topical issues. It is unconscionable to ask groups you have consistently ignored to come to your defence when the monster you have created turns against you. The Media Council should proactively deal with bribery and “tipping” of reporters within your ranks.

JAMHURI DAY CELEBRATIONS ARE MEANINGLESS: KENYANS ARE YET TO BE FREE!

In 1888 the Imperial British East Africa Company (IBEA) was granted the royal charter to administer and commercially exploit the British territory in East Africa on behalf the British monarch. The company was responsible for managing the production and exportation of raw materials and the construction of the Kenya-Uganda Railway to facilitate international trade. The company’s sphere of influence was renamed the Kenya Protectorate in 1895 and finally Kenya Colony in 1920. The declaration of the protectorate over Kenya was followed by a systematic legal process of alienating large tracts of land and dispossessing the indigenous people of the same.
According to Prof. Yash Pal Ghai, et al, the Crown Lands Ordinance, 1915, the Kenya (Annexation) Order-in-Council, 1920 and the Kenya Colony Order-in-Council, 1921 vested all arable land in the British Crown and totally disinherited indigenous Kenyans of their land. The Hut Tax Regulations of 1901 and the Hut and Poll Tax Ordinance of 1910 were promulgated to force Africans who were confined to special Native Reserves to provide labour to the white settlers. The settlers lived in exclusive white highlands in plentiful lavishness sustained by taxes collected from African labourers. To entrench the class differences between the colonisers and the African populace, the colonial government created the Kenya Police (KP) and a regimented Provincial Administration supported by a ruthless Tribal Police force (the precursor of the current day Administration Police - AP). Colonial Chiefs collected taxes thereby forcing their own people to provide near-slave labour to the colonists. Present day Kenya was consequently founded on the politico-legal jurisprudence of international mercantilism which viewed land as a commodity for commercial exploitation and the people on it as a mere a factor of production; labour. Disfranchised of their land and confined to native reserves devoid of basic infrastructure, Africans reeled under the weight of myriad social and economic tribulations.
The struggle for independence was underpinned by the people’s desire to reclaim their land and free themselves from poverty, ignorance and disease. However the historical conspiracy of exploitation continues to thrive and inform our present political leadership. In 1963 the new African leadership inherited and embraced the colonial super structure because it served them well and ensured that they retained all the trappings of power, authority and economic privileges that were previously enjoyed by the colonial administrators.
Forty five years later the same situation persists and our elected “leaders “and “representatives” exhibit great readiness to deploy the Provincial Administration, Kenya Police and the Administration Police (AP) to brutalise their own people for their own selfish interests or at the behest of exploitative multinationals, the rich and politically connected individuals. Kenya is still ruled by the pre-independence generation which does not appear to be in a hurry to hand over political and economic power to a new generation. The political leadership watches passively as criminal cartels and heartless faceless multinationals exploit our people by charging exorbitant prices for food, water, oil and other basic commodities. The political elite enjoy urbane life with unsurpassed luxury protected by state security and continue to hoard and hold large swathes of land while the majority rural and urban poor continue to live in hovels, contend with insecurity and wallow in abject poverty with no place to call home. Today, wayward politicians thrive on engineering ignorance and orchestrating ethnic violence to the extent that even those with pending corruption related court cases serve in cabinet and fly our national flag on their limousines. Ours is a country where a wasteful state beauracracy backed by a complacent political class drive around tarred urban roads in paid-for fuel guzzling off-roads and SUVs while the populace in the marginal rangelands of Northern Kenya and the arid North Eastern Province (NEP) live in constant risk of sure death owing to drought, hunger, lack of food, water and basic sanitary facilities. Ministers still make key public appointments on the basis of an individual’s second or surname rather than on merit. And yes, it is the same country where the Speaker of the National Assembly, a Minister of Government and an elected Member of Parliament can publicly equate the payment of tax to philanthropy, folly and misery on the part of their constituents.
This unchecked primitive accumulation of wealth is now untenable. When the late Josiah Mwangi Kariuki, former MP for Nyandarua North quipped in 1974 that it would reduce Kenya to a country of 10 billionaires and 10 million beggars, he was aptly describing the current socio-economic situation in our country. The ordinary people are desperate and restless. The recent public outrage over soaring food and oil prices and the reluctance by MPs to pay tax are clear pointers that the country is at the brink of a socio-politico revolution. It is not whether, but when and how it will happen that should be bothering the political elite and the rising middle class. The 10th parliament has little choice; they must provide leadership or the country will burn. They must reform the present constitutional order and create a politico-legal framework that advances inter-generational equity and ensures equality and justice across the social strata. If they do not ordinary citizens country will continue to be restive and the 2012 general elections in will become the watershed for Kenya. The country will either sink or celebrate 50 of independence under a new politico-legal dispensation and socio-economic order. For now independence celebrations only make sense to the political elite, to the ordinary Kenyans the dream of independence from poverty, ignorance and diseases remains just that, a dream!

THE RAILA - RUTO CONFLICT: THE SPLIT OF ODM IS INEVITABLE

The lingering cold war between Prime Minister Raila Odinga and his erstwhile allay William Ruto has finally flared up into an open war of wits. Raila’s positions on the Waki Report and the planned eviction of squatters from the Mau Forest have given Ruto ample ammunition to publicly take on the Prime Minister. Ruto has threatened to lead Rift Valley’s ODM parliamentarians in a mass walkout from the party and trigger the eventual break-up of the country’s largest parliamentary party. The Prime Minister has consistently supported the full implementation of the Waki report while Ruto and a cabal of ODM MPs, mainly from the Rift valley have opposed its full implementation on the grounds that such a move would target ODM leaders and its rank and file who engaged in violent mass protests at the behest of the Prime Minister. They contend that without their call for mass action and the resultant massive violence witnessed in January this year, Raila would not be a Prime Minister. Some of Raila’s backers have urged him to be cautious arguing that his stated position on the two issues could split the party and threaten the lifeline of the Grand Coalition Government.

To a discerning observer the fallout between the two leaders was inevitable from the onset. They do not share a common political ideology or history. While Raila earned his stripes in the opposition trenches fighting for democracy and good governance, Ruto is a creation of the intransigent former KANU regime whose hallmark was political intolerance and impunity. Raila was a direct victim of this regime which detained him for a total 9 (nine) years. Prior to 1991, Ruto was a little known activist of no political note. KANU’s well-oiled campaign machinery of 1992 propelled him to the national limelight. Ruto is Moi’s political prince who cut his teeth when the highly centrist KANU reigned supreme. Party activists who displayed unfettered support for the then President Daniel Arap Moi were assured of his tacit support in politics and business deals and were generally immune from any form of prosecution. KANU’s political intolerance and failure to investigate or prosecute perpetrators of political violence entrenched impunity and precipitated the politically instigated ethnic clashes that rocked the Rift Valley and Coast Provinces between 1990 and 1992 and in 1997.

When KANU lost power in 2002, Ruto and other orphans of the Moi regime found themselves in the cold and isolated from the corridors of power. President Kibaki’s State House was closed to them and they lost the political and economic advantages they were used to. Rallying support for Raila in 2007 was only a convenient way of hitting back at Kibaki and his GEMA people. But now Ruto and his friends find themselves in unfamiliar territory where leaders are being called to account for their overt and covert actions. With the threat that the Waki report might take an international dimension, they find themselves in an awkward position and they naturally expect the Prime Minister to come to their rescue.

But can the Prime Minister really protect them? Raila cannot afford to dismiss the Waki report. This would be tantamount to supporting the roasting alive of innocent women and children in a church building in Eldoret and the brutal killings of entire families in Naivasha. It would be a betrayal of the thousands of widowed, orphaned and displaced women and children. It can splotch his illustrious career as a champion for democratic freedoms, equality and justice. The report is now beyond his authority. The Waki Commission is a creation of a negotiated politico-legal settlement, mid-wifed by the international community after the constitutional order that existed in December 2007 failed to guarantee or protect the lives, property and freedoms of Kenyans. Neither President Kibaki nor Prime Minister Raila Odinga can dismiss this report since the legitimacy of their constitutional and political authority over Kenya resulted from international mediation.

William Ruto is just playing the ethnic card to obviate investigations into gross violations of human rights which border on genocide and crimes against humanity. He has consistently used community based mass media to put the Prime Minister into a discomfited defensive position. It is inconceivable that Ruto could publicly take on Raila without clear knowledge of the popular sentiment on the ground. Raila was recently quoted as threatening to resign if his supporters in Rift Valley are arrested and detained over the Waki report. The threats, made while speaking on KASS FM, a popular vernacular radio in the expansive Rift Valley province were idle since Raila was merely playing to the gallery.

The Prime Minister should demonstrate national leadership and refuse to cave in to the whims of the reactionaries in his party. He took an oath of office to defend the negotiated constitutional dispensation in the Republic of Kenya and to protect the lives and rights of every citizen. Losing the support of the Rift Valley masses is not necessarily suicidal; it will in fact earn him new friends, support in other regions and greater national appeal. The split between him and Ruto is inevitable. The Waki report has only stoked the fires for the ultimate implosion of a political union that was strained from the very beginning.

TAXATION: MPs AND JUDGES HAVE GOT IT ALL WRONG!

"'In this world nothing can be said to be certain, except death and taxes."
-Benjamin Franklin, 1789.-

Parliament is supposed to be the embodiment of the sovereign will of the people and the personification of their collective legislative wisdom. Whereas there is a general consensus amongst ordinary people that everybody, including Members of Parliament and other Constitutional office holders should pay tax, our MPs and Judges of the High Court think otherwise. MPs have chosen to arm-twist the Minister of Finance into dropping proposals to tax their hefty salaries and allowances while Judges have sought presidential intervention to prevent the taxman from “pinching” their purses. These actions by MPs and Justices are contradictory to the collective desire of the citizenry and incompatible with modern theories on public finance and tax revenue administration.

Taxation is premised on the exercise of sovereign legislative authority. Elected representatives lay down the general policy and legal framework for taxation in all democratic societies in line with the celebrated maxim of “no taxation without representation”. They also provide a general guide on the tariff rates to be charged against each tax head. Judges interpret the law and resolve disputes that arise between the citizens and government over the imposition of taxes, duties, levies or the grant of subsidies. Members of Parliament and Judges should therefore lead the way in paying income tax if they expect ordinary citizens to voluntarily comply with the law.

Paying taxes is the highest form of corporate social responsibility for any citizen; corporate or otherwise. Taxes are levied for the common good of the society. Since time immemorial, nation states have levied and collected taxes to finance public expenditure and provide services such as security, education, health and infrastructure. Modern states still use Oliver Wendell’s old adage that “taxation is the cost of civilization” to justify personal income and corporate tax.

Some pundits have speciously argued that the MPs’ action amounts to Parliamentary dictatorship. This is logically absurd since our MPs were elected through a democratic process. The actions by MPs and Judges amount to a gross abuse of legislative and judicial privilege respectively. MPs and Judges are sending a message that they cannot be trusted vanguards of our political sovereignty, economic freedom, equality and justice. They are providing ammunition to tax evaders who are likely to rationalize tax fraud by citing the examples set by MPs and Judges. Reduced voluntary compliance with taxation laws will ultimately affect the government’s ability to finance its obligations, lead to domestic borrowing and soar up interest rates which will in turn diminish the borrowing power of ordinary people and businesses resulting in reduced capital investments and meager economic growth.

Uniform application of taxation laws is intended to spread wealth and create a more just and equitable society. Members of the 10th Parliament and Judges are however telling Kenyans that it is okay for 300 individuals to live in abundant opulence sustained by already overburdened taxpayers while the majority of the citizenry wallow in abject poverty. Their actions demonstrate a collective determination to preserve and entrench a politico-economic system that promotes social inequality and injustice. This is immoral and unacceptable in a civilized society. MPs and judges should pay tax, period!

OBAMA IS A CITIZEN OF THE WORLD

The election of Illinois Senator Barrack Obama as the 44th president of the United States of America heralds a new chapter in the political history of the world. It is the ultimate indication that the racial relations in the world have gone full circle and that any talented individual irrespective of his colour or race can actualize their highest aspirations.

Senator Obama is a citizen of the world. Born in Hawaii to a Kenyan father and an American mother, reared in Indonesia and Hawaii, Obama is the exemplification of the world as one global village. He is the personification of the innate desires, hopes, aspirations and expectation of Africans and all other coloured peoples in the world. His success is their triumph against long held mythical beliefs of intellectual differentiation across racial groups. Never before in the history of mankind has such an onerous responsibility been placed on the shoulders of one man. Senator Obama has proved that he is capable of changing the world and the American have demonstrated their faith and trust in his capacity by electing him into the White House. We salute the American people for taking their place of pride in history. Congratulations America! You have shown your greatness by changing the course of world history; by choosing direction over complexion. God bless America, God bless Americans, God bless Obama, and God bless the world.

JUDGES SHOULD SIGN PERFORMANCE CONTRACTS

Prime Minister Raila Odinga and Justice Minister Martha Karua insist that judges and magistrates should sign performance contracts whereas the Chief Justice Evans Gicheru and other senior members of the bench contend that such a move will undermine judicial independence in Kenya.

The spirited opposition to performance contracting by the Chief Justice and his colleagues displays a lack of conceptual understanding of the process. A Performance Contract is basically an agreement involving the government and a state entity which outlines the broad objectives for that entity, lays down goals for quantifying productivity and offers incentives for accomplishing these targets. Judicial independence is a legal dictum to warrant that the decisions of the judiciary are impartial and not subject to manipulation by the other arms of government or by private and political interests.

Judicial independence which is hinged on the security of tenure of service enables judicial officers to exercises unfettered discretion in determining cases and resolving disputes. In Kenya, this independence is guaranteed by the Constitution which gives judges of the High Court and the Court of Appeal security of tenure and confers the Judicial Service Commission with the mandate of superintending over the affairs of the judiciary. Even with this autonomy judges are still required by law to exercise their discretion reasonably, adhere to certain rules and proclaim judgements that reflect fidelity to the law. Besides, not every judicial officer is involved in the hearing and determination of cases. Some are fully engaged in the management of the administrative and clerical wing of the department.

The Kenyan judiciary has stood still for decades and failed to reform and embrace modernity. The judicial process and the criminal justice system are still highly steeped in primordial procedural practices which hurt and deny poor unrepresented litigants access to substantive justice. Inadequate staff and lack of financial resources have often been cited as the reasons for the incessant delays in determining legal disputes and disposing of cases. Laxity, ineptitude and lack of integrity play a significant role too. This is the main reason why the judiciary ought to embrace performance contracting. International best practice shows that governments and global agencies are currently implementing performance contracting to enhance performance of civil servants and entrench good governance and accountability. Goal setting is an important evaluation tool for determining resource allocation and assessing skill gaps in an organisation.

The Judicial Service Commission (JSC) should set down the mission, broad objectives and the strategies for achieving the mission of the judiciary. It is upon these broad objectives that judges and magistrates will set their key result areas (KRAs) and key performance indicators (KPIs) upon which they will be evaluated. The initial goals and targets for each individual officer can be set on the basis of historical data regarding past performance. The KRAs and KPIs can be structured in relation to integrity, training, sitting hours, number of cases to be heard and determined by each officer, the number of judgements and rulings delivered and timely resolution of administrative issues. This can easily be done without fettering the discretion of judges and magistrates to determine cases on their own merits. Since judicial officers will set the criteria for their own appraisal by peers, it is difficult to discern how performance contracting will interfere with the exercise of judicial discretion. Judicial independence should not be used as an excuse for inefficiency and ineptitude.

MANAGEMENT OF EDUCATION IN KENYA: MINISTRY OF EDUCATION HAS FAILED.

The recent violent strikes in public secondary schools have brought into sharp focus the role of the Ministry of Education in the management of the public education system in Kenya.

Management is the art of getting people together to accomplish desired goals through planning, organizing, sourcing, leading or directing, and controlling an organization or effort for the purpose of accomplishing a goal. Education Management focuses attention on strategies for keeping education resources current, up to date, and accessible. It is ensuring that people have the most recent and suitable education to do their work.

The Education Act, 1968 defines a manager as any person or body of persons responsible for the management and conduct of a school, and includes a Board. The Act, read together with the Teachers Service Commission Act, Cap. 212, confers extensive powers on the Minister of Education over the management and regulation of education in Kenya. The two acts give the minister extensive latitude to delegate his powers to local authorities, District Education Boards or Boards of Governors.

Tertiary institutions and public secondary schools are administered by Boards of Governors appointed by the Minister whereas Primary schools are managed by School Committees appointed by local authorities. The boards and committees are responsible for the hire and remuneration of support and subordinate staff in public schools. The boards also act as the custodians and trustees of the movable and immovable property of their respective schools. The principals and headmasters of these institutions serve as the secretaries and executive officers to the boards of governors or school committees as the case may be.

The Public Procurement and Disposal Act, 2005 has granted teachers the power to control the tendering and procurement process in public schools. The Teachers Service Commission Act allows the Teachers Service Commission to delegate its powers relating to the hiring, control and discipline of teachers to Boards of Governors inter alia. The disbursement and utilisation of government funds under the Free Primary Education (FPE) and Free Secondary Education (FSE) programmes is subject to the provisions of the Government Financial Management Act, 2004. The boards of governors are mandated by the Education Act to audit and regulate expenditure by the administration to ensure that all the income received by the school is applied for the promotion of the objects of the school. These statutes presume that members of the Boards of Governors and teachers are knowledgeable in Law, Human Resources Management, Supply Chain Management, Accounting and Project management. That is where the main problem in the management in public schools lies.

The Ministry of Education continues to employ archaic techniques in the administration of education institutions. The tools for the management and evaluation of public education institutions have remained static for a long time despite the rapid technological, socio-cultural and economic changes in the country. Management organs such as Boards of Governors are constituted so as to include representatives of the communities served by the school, persons representing any voluntary body which was the founder of the school or its successor, and any other persons or representatives of bodies or organizations that, in the opinion of the Minister, should be included. There is no set criteria enumerating the skills a person should possess to qualify for appointment into a board. Service in School Boards is not remunerated and consequently most professionals opt to stay away from it. The result is that most public schools are managed by old and unenergetic retirees, semi-literate businesspeople or other semi-skilled non-professionals. This has created a managerial gap in most public schools in rural Kenya. The old managers cannot cope up with the rapid social, technological, economic and cultural changes in our country. The managers are more often than not erudite in elementary law and cannot readily grasp the provisions of the Education Act or the basic concepts in management of public finance, human resource management and organizational management. The Education Act is also inexplicably lenient on imprudent school boards. Suspension and forced resignation are the only penalties the minister can impose on an errant board.

School boards composed of members who do not possess managerial skills; expertise and experience are a major source of discontent among students and parents. Parents typically oppose a school administration if they perceive it to be incompetent, opaque or unaccountable. Students on the other hand engage in insidious conduct to protest against such managers. Initially it was possible to “cover-up” such managerial ineptitudes through authoritarian leadership. Before the enactment of the Children’s Act, 2001, school heads would use actual or threats of corporal punishment to forestall complaints from students. This explains why the protests have become more pronounced and dangerous since the use of corporal punishment in schools was abolished and replaced with guidance and counselling.

Apart from appointing representatives to the board, religious organisations which sponsored or founded most public schools in Kenya, play a peripheral role in managing the schools. They should get more involved since they can play a complimentary role in guiding and counselling adolescent students. Religious leaders exercise both temporal and spiritual authority and can exert moral pressure on delinquent students to infuse behavioural change.

Whereas parents are very quick to blame the school administration when things go wrong in a school, they also shy away from making a conscious effort and practical contribution to the management of the institutions. They are content to play the perfunctory roles of paying school fees, electing Parents Teachers Association (PTA) representatives and attending annual general meetings once a year. Parents should get actively involved and support the school administration in matters of enforcing discipline

There is a dire need to change the training curriculum for teachers to include new subjects which will equip teachers with elementary working knowledge in Accounting, Planning, Financial Management and Project Management. The Ministry of Education should also develop a criterion for the appointment of members of boards of governors and create a common Project Monitoring and Evaluation Tool for managers of public schools. It is important for the government, parents, school managers and educationists to review the current system of managing public institutions to attract more professionals and allow full and equitable participation by all the stakeholders.

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