KENYA IS AT CROSS ROADS, AND SO AM I.

Every society begins with a group of individual coming together and deciding to be organized.  They decide to be bound by a certain code, and sometimes even to be governed by a one among them to maintain order.  As the group grows, so do the views expressed in the groups, the people who intend to govern the others also get different views on how the society should be run, and this festers sometimes into animosity.  Then someone came up with a word called “Democracy”  where people are to suggest who they think would make good leaders, and then everybody who cares to be heard puts in their two cents worth of opinion into the conversation.  The one who emerges with the most two cents, is declared the winner and therefore the governor.

I know this is a very simplistic synopsis of how our societies are created, arranged and propagated.  However, my point in all this is simple.  In Kenya our origins are a bit different.  We had kingdoms and chiefdoms that were living side by side with each other.  People spoke their different languages and they had their own government.  But in the late 17^th Century, explorers came and “discovered” the treasures and pleasures of this vast land known as Africa.  They went back home and told all who would care to listen about it.  Investment Companies were formed and given Charters to come and explore the land and bring people out from the then considered overcrowded European Countries, and help them settle here in vast Africa.  What happened by mid 18^th Century was colonization.  Under colonization, the fabric of how our societies were then organized was irreversibly altered.  Opposing societies, historical enemies were made to become part of one nation.  Societies were split into two when an imaginary line called a boundary was drawn between them.  New entities came in and decided how, when, what the societies would do, making many helpless, since they could simply not grasp this new way of life.

Fast forward to the 20^th Century, and we have modern day Kenya.  It is made of at least 52 different societies.  It is also a poster child of harmony, peace and stability for the longest time.  Until we arrive to the 21^st Century, and by now politics has “matured” in Africa.  This means simply that we have completely discarded our former societies and are actively trying to come up with one united society. However, the events of December 2007 and early 2008 reminded us, that within us, those societies still remain.  The pull of the former allegiances, despite our best efforts remain a strong under current suppressed only by our need to believe we are one, but when need be, then the current can override our nationhood.  There are those who were surprised by the veracity and the velocity of this under current.  There are those who thought it was about time our true colours came out for all to see.

Kenyans decided they wanted a change in how they were governed.  They believed the problem was that the Constitution gave the governor too much power that if used correctly could greatly benefit the people, but when used capriciously, was a tool of great oppression.  They were right of course.  When the colonialists were leaving, they handed the country over to the new governors under a negotiated instrument called a Constitution.  This was the new social contract between the governor and the governed.  We flourished under this extensively negotiated instrument for all of two years.  Once the new indigenous governors were in place, they took it upon themselves to alter the negotiated document into one that suited them, and had no negotiation with the governed.  This is how we lost our regional governments.  This is how we lost autonomy over the land in the area where we lived.  This is how we lost the practice of the leader serving the people, and we went back to having a sovereign and subjects.  The first President and founding father of our nation was a man who used this to good effect to consolidate his position.  When he rested, the successor was a benevolent leader until 1982 when someone tried to overthrow him, and he too, adopted the same tactics of an iron fist that his predecessor had used.

When Kenyans decided they needed a review of their constitution, they did not know that this was the golden opportunity for yet another set of opportunists.  The first set was the early independence ruling class.  This set is even more dangerous, because they are domiciled among us pretending to have our massive interests at heart, but they are actually working for interests outside our realm of understanding.  The civil society is a tool that has twin sides.  On one side they dig wells, and educate our children and feed our dying masses.  On the other hand, they play dangerous games in politics, with tactics such as lobbying, technical assistance, grants and awards, and other means of persuasion to tell us we must think a certain way, and any other way is taking us back to the dark ages.  Instead therefore of constitutional review, we ended up with a brand new NGO constitution.

That is why Kenya is at cross-roads.  There are many things that are in our “new” constitution that will shake this society of ours to its very core.  There are truths we have had over the years that under this new dispensation will now not hold true.  There are things we never thought we would see on our land, which will now become common place.  I find myself being right smack in the middle of all this.  I was living my life minding my own business when all this happened and now I find I cannot keep silent.  I cannot watch as the society I grew up in degenerate into something barely recognizable.  I cannot watch as our leaders refuse to learn from the experiences of those who have travelled this road before us and found it to be disastrous, and just let them lead us down the same mine shaft.

Kenya is at cross roads, and indeed I am too.  I can choose to mind my own business and keep my corner clean, or I can choose to get equipped and to become a warrior.  I may not save the world, but like the brave 300 Spartans who fought the great battle against the Persians, I can die keeping the enemy away from my motherland long enough to help reinforcements organize themselves and come to the aid of many.

To be President or Not to be President, that is the Five Billion Shilling Question.

Last week, in the East African Newspaper, Muthoni Wanyeki wrote an article that was a tribute to a lady who had passed away after an unfortunate road accident.  Dekha Ibrahim worked tirelessy in peace efforts in the North Eastern Region of Kenya and her death is indeed a big blow.  Our thoughts and prayers remain with her children who are now orphaned, seeing as her husband and the driver both died on the spot.  Back to today's post.

Ms. Wanyeki wrote something that caught my eye.  She commented, I paraphrase, that she could not undrestand why the race to State House has attracted so many entrants yet the new Constitution emasculated the office of the President.  She put it down to the fact that most of the aspirants did not internalise that the Presidency shall never be as it has been under Presidents Kenyatta, Moi and now Kibaki.  Indeed, Kibaki has felt the clipping of his wings to a small extent, but I doubt he cares much.  If you want to read Muthoni's article, here is the link http://www.theeastafrican.co.ke/OpEd/comment/Dekha+Ibrahim+fought+tirelessly+for+peace++justice/-/434750/1202554/-/153anelz/-/index.html

This prompted me to look at what has been, what will be, and what is the difference between them.  I did what all execs do, got an intern to do a detailed analysis, and now I pass it off as my hard work.  (The summary is all my hard work though, I guarantee you!)

1.  Elections:  In the New Order,  for one to be nominated as a Presidential Candidate, he should have at least 2000 voters in a majority of the Counties adding their signatures to his nomination papers.  The Old Order had no such requirement at the nomination stage, a mere 2000 signatures were sufficient.  The "Old President" had to only have a simple majority in a first past the post system.  This meant even if more people voted against him by voting opposition, if he got more than opposition, he was declared and duly sworn in as President.  Under the New Order, the President must garner at least 51% of the total votes cast as well as a 25% county threshold to avoid a run-off.
2.  Appointments:  The Old President could hire and fire on the 1 O'clock News Bulletin, but the New Order demands all Presidential appointments must be vetted by the National Assembly.
3.  Directives:  The Old President could make new districts on the roadside as he made whistle-stop tours and they would have the force of law.  Under the New Order, all Presidential Directives must be in writing, and must be signed and sealed as well.
4.  Impeachment:  Under the Old Order, a vote of "No Confidence" in the President would see the whole Parliament also stand dissolved.  The New Order provides for the Impeachment of a President without affecting the life of the National Assembly.
5.  Immunity:  Previous Presidents all enjoyed immunity from Criminal Prosecution during the life of their Presidency.  The New Order demands that the President will face criminal charges for offences that are envisaged in any International Treaty Kenya ratifies for example gross violations of Human Rights.
6.  Commissions of Inquiry:  Any reports made by any Commission or Taskforce shall be published once they are presented to the President, unlike previously where their release and implementation was the prerogative of the President.


Is your head reeling yet?  Got room for more?  Here we go, we are not done yet, a couple more good ones.

7.  Power of the President over County Governments:  The President may set up a Tribunal to look into the conduct of a County Assembly.  If it is found to be inappropriate, he may choose to dissolve that particular County Assembly.  However, this is subject to approval by the Senate.  The Senate can also vote to "unsuspend" any suspended County Assembly if they find that the President suspended the County Assembly unjustifiably.

8.  Assent of Bills:  If the President did not wish for a certain law to pass, he simply withheld his Assent.  Under the New Constitution, if the President without cause withholds his assent, the law automatically passes after 7 days of receiving the Bill from the Speaker.  Of course within the 7 days he can send the Bill back to the National Assembly with suggested corrections.  A majority vote in Parliament can choose to ignore the President's suggestion, and they can go ahead and send it back to him as it was, at which point he either Assents or he doesn't, the difference is actually the same; the Bill becomes law after 7 days.  

Before you imagine that all I wanted to do is to bore you with facts and figures, let me make my point.  It is now harder for one to even make it to State House.  However, once you are there you find, you actually have little or no work to do.  Apart from being Commander in Chief, all other functions of the Presidency have been effectively taken over by the National Assembly and in one instance the Senate.  We will have a figurehead President, who much like the Queen of England, will spend a lot of our money but the actual elbow grease of running our country will be needed by others.

So it is still worthwhile to run for the Presidency?  If you cannot appoint all your in laws as Ambassadors or your cronies as Ministers, will it still be worth it?  If you cannot make declarations that stick, or if you are liable to face prosecution if you make an order as Commander in Chief that ends in loss of life?  Can you still call yourself President if you can suggest amendments to a Bill prior to Assent, only for your suggestions to be rubbished by a majority of members.  Remember, quorum for the National Assembly out of 350 strong will only be 50, so 26 members can say "we don't think so" and pass the Bill anyway.  Are you still President when you exercise your power to dissolve a County Assembly that is under performing only for the Senate to veto that decision?

Will we have a President really?  Or just a figure head.  Peter Opondo of Citizen when arguing out his reasons why he does not think Prof. James Ole Kiyiapi could run a Presidential Campaign indicated as one of his reasons, the fact that one needs at least Kes 5,000,000,000/= to run a campaign and clearly Prof. Kiyiapi had no such money.  However, why would you spend all this money anyway, to come and find the party is already over for the President and all that is left is the cleaning, washing up and putting away?

I have argued before, but maybe not on  this forum, that we traded an All-Powerful-President, for an All-Powerful-National-Assembly.  Dictatorship by one versus Dictatorship by 350.  Of all our elected Representatives, the members of the National Assembly can decide to gang up against the President and consign him to State House basically to "Keep House" rather than govern the State.  Will it really be worth it to run for Presidency come 2012, (or 2013 if our Parliamentary Dictatorship gets their way)?

Think about it, and tell me what you think.

Is it "Cat out of the Bag" or is it "Cat on a Hot Tin Roof?" - Part II

Well, after a few days of considering what I feel on this issue, I think I have it nailed.  Someone asked me what on earth I meant by "Cat out of the bag" and "Cat on a hot tin roof".  Its simple really.  Cat out of the bag means finally we have a chance to see exactly what direction the Chief Justice's agenda for the new Judiciary is.  Some of us skeptical of him heard so much high praise about how revolutionary and wonderful he would be for the Judiciary and so looked forward to some real change.  Maybe it was therefore easier for him to simply start by something easier, like dresscode.  Nothing much to decide about that.  So now the cat is out of the bag, it will be very liberal and relaxed under our new CJ, so I guess my spaghetti strap tops and peep toes will find a place in his new dress code, I am sure.

Cat on a hot tin roof, is simply reactionary.  The fact that so much hullabaloo was raise concerning the stud prior to his confirmation in office, and after he assumed office, the "young lawyers" kept asking him to clarify that position so he felt compelled by the pressure of it all to react one way or another.  Seeing as he is the purest cleanest Judicial Officer now, it would seem, he could not preach water and drink wine, so instead chose to simply clarify, stud are fine, and so are dreadlocks.

I have given this much thought and have had endless debates with friends and colleagues about this.  What I pen down today is what we would call "A considered opinion".  Our Chief Justice is quoted as saying that if he had to remove the stud, he would rather lose the position of CJ.  Now that he is well and truly in charge, he has to live up to that assertion, as well as live up to the expectation of changing things in the Judiciary.  So his cat is out of the bag, and he is dancing on a hot tin roof.

I must say I am disappointed.  I do not have much faith in the CJ and his magical ability to change the Judiciary in the manner most of us imagine, but I have a lot of faith in the fact that in his position he has the ability to change the course of history as far as Kenya is concerned.  The fact that his first major directive was to hire Advocates to defend the JSC in a matter that is clear (see earlier post on one-third, two-thirds what's the difference) may be put down as inexperience, learning the ropes as it were, since I don't see the ruling of the Court going the JSC way on this one.  However, for him to take to Facebook to issue a statement of the magnitude of this particular one, I think was very misdirected.  Who is his intended audience?  The Advocates who practise before the Court on a daily basis?  The Judicial Officers who will effectively implement the directive?  How were they to find the directive on Facebook?  Then what on earth does he mean it is on his behalf and the Supreme Court?  Which Supreme Court? His Deputy and himself? Then now, does that mean the Judiciary has become "Us" and "Them"? The Supreme Court is some form of higher power court that does not really belong with the rank and file of the Subordinate Courts, High Court and Court of Appeal?

One definitely cannot have his cake and eat it too.  You cannot be the law enforcer, when no law seems applicable to you.  One thing about being a Judicial Officer is that sometimes, you must preach water even if you drink wine, because water must be preached over wine.  That is how you apply the law, not because you agree with all of it, but because it is what it is.  The Court cannot be run on the basis of "what-I-believe-in" or "I-don't-see-what-the-problem-with-that-is"  It is like a building.  The architect can design anything he wants, however he wants, but when it comes to construction, it only works if it is built from the foundation up.  Brick upon brick, so is the law, precept upon precept, precedent upon precedent.  Any attempt to alter this order, can see the whole thing come tumbling down.

So now that the cat is out of the bag, let the dance on the hot tin roof begin!

Is it "Cat out of the Bag" or is it "Cat on a Hot Tin Roof?"

Over the last week, I have received questions on Facebook and Twitter by young lawyers about my position on studs and the dress code in Kenyan courts. To wit can lawyers appear before the Court wearing their studs? Because it is difficult for me to respond to each one of them individually, I wish to clarify my position here.

At this point, I can say that the Judges of the Supreme Court have agreed that we have no issues with anyone appearing before the Supreme Court, wearing their studs. Our position is that as long as officers of the court - both lawyers and judges can appear smart, a stud - or indeed dreadlocks - should not hinder the administration of justice.

At the Supreme Court, we shall not be wearing the colonial wigs and robes, and we shall seek the input of Kenyans on a simple robe that can be worn over a suit, for example. We will encourage the Court of Appeal and the High Court to review the dress code there. We will dialogue with them and the LSK and we expect the public to participate in the debate.

Willy Mutunga,

Chief Justice, Republic of Kenya

President of the Supreme Court

This statement was issued on Facebook by our Chief Justice this week.  He is a man of great insight and high aptitude.  I read his statement on the proposed new dress code and don't know what to make of it.  It is not often I am out of words, so make a note of this, it may not happen again in your life time.  So I leave it to you, are we seeing true colours coming out, or it is simply a case of one having made his bed (with a stud in it) and now having to lie in it.  Take it in whatever sense thou wilst!!