Wakenya Tulizeni Boli. Bado Tena Bado Sana!

One thing I have heard over and over again is, "I cannot wait for March 5th, then all the madness will be behind us."  Whenever I hear this I cringe because for sure, it will not be over on March 5th, indeed, it will have just began.  Let me explain.

When we voted in the Constitution in 2010, in it were some very prescriptive detail on how we are to conduct our affairs.  This is one of the biggest criticism I have of our Constitution.  It wants to be Constitution and statute all rolled in one.  One of the most prescriptive parts of the Constitution are those that have to do with elections.  Given our history, one can see why the Committee of experts felt they should go into overkill.  However, in their responding to the emotion of the day, we are now saddled with a reality that few of us had anticipated.

Kenya has elections slated for the 4th of March 2013.  She is going to the polls to elect a whole new system of Government, a return to bi-cameral parliament, as well as the establishment of 47 Counties, each with its own County Government.  However, all those other positions being contested are eclipsed by the presidential election.  It is so hotly contested, that the election fever is now burning us literally with people becoming apprehensive of violence. I wish Kenyans would realise how long a wait we are in for, they would realise we cannot sustain this high tempo momentum for long, because it will take us all of three months to install a newly elected President.

When we go to the polls on March 4th, the Constitution gives the Independent Electoral and Boundaries Commission 7 days within which the results must be announced.  Of course nothing stops them from announcing earlier than the 7 days, but if they stretch it to the limit, this takes us to March 11th when the final results are declared.  Once they are declared, Article 140 indicates, that there is a 7 day period during which time any challenge to the results may be lodged.  Since multiparty politics resumed in 1992, each and every election of a President has seen a challenge in court, so I think it would be safe to assume, based on similar fact evidence, that this would be the case this time around too.  This takes us to March 18th 2013.

After March 18th 2013, if there is a petition in court, the Supreme Court has 14 days to make a determination on it, this would take us to 1st April 2013.  If they determine the President-Elect was not duly elected, Kenyans have to go back to the polls to repeat the election within 60 days, taking us to the 1st week of June 2013.  IF the decision is that the election was good and proper, we would be headed for a second round.  The reason for the assumption that there would be a run-off, is simple.  Again, similar fact evidence.  Since 1992, the President has been elected by less than 50% of the votes cast, except for 2002 when President Moi was no longer running and Kibaki was declared as a joint ticket presidential candidate under the NARC coalition.  This means the threshold of 50% +1 would be near impossible for anyone to achieve, given we have 8 Presidential candidates.  There is the additional hurdle of 25% in at least 24 Counties.  Even recent polls demonstrate, no single candidate has this locked down.

Back to my timeline.  On March 18th,2013, if the Supreme Court find the elections were fine, the IEBC has 30 days within which to organise and conduct a run-off.  This would take us to the 16th April 2013.  On the 16th April 2013, we go to the polls and vote in the run-off.  The IEBC have 7 days to declare the election, so for the sake of argument if they take the full 7 days, that would take us to 23rd of April 2013.  Once the results are declared, if there is no petition filed, the President-elect will be sworn in on the first Tuesday after the 14th day.  The 14th day is the 7th of May, since it is itself a Tuesday that would go to the 14th of May as the day the President-elect will be sworn in.

If there is a petition filed, this is how the scenario will play out.  After 16th April we take 7 days to wait for a petition, and the Supreme Court again have 14 days to hear the matter, a total of 21 days, 7th of May 2013.  Once a decision is rendered on 7th of May, we have 7 days to swear in the President, that goes to the 14th May 2013.

Kenyans, this means we have between March 4th 2013, and May 14th 2013 to have a new occupant of State House.  We need to be extra patient, and to let things play out as they must.  If we keep up this election fever we have, we run the risk of suffering permanent brain damage as a people, making it a catalyst for the eruption of fresh violence.  When we go to the polls, we better be prepared for the fact that a new President is actually three months away, and in the mean time we can concentrate on setting up our County Governments so that our day to day life is not disrupted.

God bless Kenya, and I wish all of you a wonderful Lenten season.  On March 4th, let us Get-Out-The-Vote and make our voices heard, au sio?

Forget the two thirds rule, lets split this 50-50!

A while back I wrote a blog post on an issue that is proving to be thorny. In case you missed it, read it here  http://joymdivo.blogspot.com/2011/06/one-third-two-thirds-what-is-difference.html.  The Constitution of Kenya 2010 in Article 81 introduced an interesting concept in this East African nation:  Gender Parity by Law.  This meant that society did not have the luxury of time in deciding to accept women as capable leaders.  They did not have the option of giving women a chance and seeing them prove themselves so that they can get another chance.  They were told, that from August 27th 2010 henceforth, no appointive or elective office shall be occupied by more than two thirds of the same gender.

When it comes to appointed posts, achieving this is easy since the appointing authority just has to remember their mathematics class on fractions and division.  However, elective posts are more tricky since they depend on the adult suffrage to make this decision, and not all of them are good mathematicians.  Therefore there is need a formula to ensure that even when the public do their math, it adds up to the principle of not more than two thirds of one gender being elected.  The members of the 10th parliament were so keen on consolidating their position that while they provided for mechanism to ensure this is achieved in the Senate and in the County Assemblies, they left the National Assembly open.

Chapter 8 of the Constitution establishes our Bi-Cameral House.  Article 97 sets out that we shall elect 290 MPs, 47 Women, 12 Special interest nominees and the Speaker.  This week a meeting between the Commissions responsible for implementing the Constitution as well as the Parliamentary Committee agreed on a "formula"  that we proceed as put in the constitution, and if we fail to make the numbers, then parties should be allowed to nominate more women to make up the difference.  The net result is that we have potential to have a lower House of more than 500 members.  This plan was rejected by Members of Parliament in their Speaker's Kamukunji, but the stalemate remains, what do we do about this?

My suggestion to get out of this quagmire is simply this.  The Independent Electoral and Boundaries Commission to scrap ALL constituencies.  If we will have Wards each with a Representative in the County Assembly, the bread and butter issues of the Citizens will be dealt with closer to home in the County Assembly.  Therefore the role of the Constituency is not as central as it was before.  Since Governors and Senators will be seeking mandate from the whole County, so too should Members of Parliament.  Each County therefore should produce one Male and one Female Member of Parliament, and we still retain the 12 special interest seats.  That way, not only is the Constitutional Provision preserved, we will have a House with a total of 107 members.  Not only can we better afford 107 members, as compared to 350 members the playing field will be levelled for all persons seeking elective posts, since they will have Countywide support.

Given the vast powers that the National Assembly will have, it is vital for the people going there to have the widest base possible as is with the Senators.  Each Party only has to nominate one man and one woman to go on the ballot, and each stand equal chance of being elected.  It is time for the Members of the 10th Parliament to wake up and smell the coffee.  We did not get rid of dictatorship by the President to swap it with dictatorship by Parliament.  We are not interested if some of them "lose" their seats since they are not theirs to keep, but ours to give to whom we please.  Time has come for them to put Kenya ahead of their own selfish interests and make the right decision for Kenya.  Let us go 50-50, one man one woman.  And save us some money in the process, we need to pay the teachers, and doctors, and nurses, and lecturers and civil servants.....

Ladies and Gentlemen, Please Welcome Kenya, the Newest Member of the Universal Baby Murder Club.

Start by looking at this article first.  http://safariafricaradio.com/index.php/section-blog/96-women/807-maputo-protocol-a-hard-won-victory-for-women

This is one of those posts I wish I never had to write.  Kenya finally ratified the Maputo Protocol.  For those who followed the debate by the parties opposed to the passing of the new Constitution in Kenya last year, one of the biggest threats was the fact that the Constitution only allowed for Ratification of an International Treaty for it to become law in Kenya.  There was a contentious clause as well of Abortion not being permitted unless the law expressly allowed it.  By the ratification of the protocol, guess what, Kenya finally joined the "Let us use State funds to murder children rather than to save lives Club"  I say this without fear of any contradiction, that this was what those who drafted the Constitution wanted in the first place.  That is why it was made so difficult to change once the true plot came out.  How did we get here?

The USA has found itself in unfamiliar territory over the last month.  They have aired their dirty linen in public for all to see, Americans are very patriotic and know how to criticize others without really pointing any fingers at themselves.  However the battle between the Republicans and the Democrats, the House of Representatives and the Senate, the Liberals versus the Conservatives has been played out blow by blow in full view of the world.  If the stakes would not have been so high, it would have been laughable.  One analyst however summed in up neatly.  He said the problem is not really Congress or the Senate or the points being thrown around.  He reckoned the problem is the fact that election donations by special interest groups was not as tightly controlled, and therefore those in power, had huge special interest group donors who were watching keenly.  Next year being an election year, no one wants to lose a donor now, so everyone felt compelled to play hard ball, hence the historic stalemate.

Now back to Kenya.  This Constitution we now have, that I have sworn allegiance to only because I am a patriotic Kenyan, is not a Kenyan Constitution.  It is not a Wanjiku Constitution.  It is an NGO Constitution.  Special Interest groups had endless lobbying to form a compliant "Committee of Experts" whose expertise was apparent only to them and to those who suggested they are experts.  Then came the Referrendum Campaigns and the money that was "poured" to "educate" Kenyans on the contents of the Constitution.  The Church stood up very strongly opposed to the document, and those of us who spoke on behalf of the Church were labelled "liars" our Bishops were called "Demon-Possessed" One cabinet ministers actually called the Church Pastors "Ninkapoops" (sp?)

Within the last one month, Kenya finally committed itself to the World during a Conference in New York, to fully implement the Protocol, and committed to also end all forms of discrimination including discrimination on the basis of sexual orientation.  Indeed, get me right on Abortion, my heart bleeds for all those women who will buy the lie and procure the same, to end up with broken dreams, nightmares, and a womb upon which death has found solace and continually rejects life even when she wants to give life.  I bleed for those children who will never see the light of day, who's lives will be ended by an abortionists tools breaking into their warm cell.

I have to finish this later, my heart is so broken, I need a good cry.  Kenya has just mortgaged it soul to the devil.  God help us.

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.

One-third, two-thirds what is the difference?

I have had a very interesting and eye opening experience today.  In Kenya, there is the case currently in Court about the nominations to the brand new never been seen before in Kenya Supreme Court.  For the benefit of those who do not know what this is, let me break this down for you.  We passed a new Constitution last year that stipulated in it that the composition of all elective and appointive bodies will have to have no more than two thirds of one gender.  The Supreme Court nominations have Two Women and Five Men.  Has the requirement to not have more than two thirds of one gender been met?

The Federation of Women Lawyers Kenya Chapter (FIDA-Kenya) has led a group of several womens organisations to challenge this balance as failing to meet the Constitutional provisions.  The Chief Justice has appointed some reputable Human rights lawyers to defend the Judicial Service Commission in the matter.  Till now, I was a casual observer to this circus, since as you can tell from my earlier posts, my beef with the JSC was on a different tangent, but today they are not lucky, I am on their back again!

Let us do the math.  Two thirds of 7 will give you 4.67 people.  One third will give you 2.33.  Now we know there are no .33 people (duh!) so how do we resolve the impasse?  Article 81(2) of the Constitution of Kenya 2010 reads as follows.


81. The electoral system shall comply with the following principles––
(b) not more than two-thirds of the members of elective public bodies shall be of the same gender;


This means any number less than or equal to two thirds is within the Constitutional confines.  It therefore follows, any such overflow, must be rounded down to ensure the threshold is met.  This means therefore if you have 4.67 rounded off to 5 people, 5 is more than the two thirds MAXIMUM and therefore it cannot be Constitutional. Meaning, .67 takes it over and above and therefore is unconstitutional.  The only solution is to round it off to 4 so that the number of the opposite gender comes up to 3 meeting the threshold of NOT MORE THAN two thirds.

The argument has been on women attaining the one third threshold, but that premise is misleading.  The constitution gives the maximum, and it cannot be exceeded even by one person.  Not getting it yet?  Let me try it another way.  Having 5 members of one gender in a 7 member Court translates to 71.43% of the court being represented by one gender.  Having 2 members of one gender in a 7 member Court translates to 28.57%.  Two thirds would be 66.67%, meaning the current composition of the Supreme Court is 4.76% OVER  the allowed constitutional maximum. This may seem like a small difference but just think of it this way.  We are to have a National Assembly with 350 members.  If it were to be 4.76% off, instead of having 233.33 members of one gender topping the two thirds maximum, you would have 16.6 more members, making the new number 250.  That is 17 members over the limit, but the same 4.76%

I know either you have a eureka moment, or you are shaking your head wondering what I am on about.  The moral of this whole story is this.  The Supreme Court appointments may look like the are off not even by a whole person, so why the big deal.  Think of a protractor, where you measure one degree from another is a single convergent point, but as the lines elongate, it becomes apparent that a degree from another travel very different paths and if you meet them after one kilometre, they will be so far apart.  A builder puts a plumbline to determine whether a wall is straight, because even the smallest deviation, could see the whole structure collapse.  If we are implementing this constitution, lets do it right, otherwise, in future the mess will be bigger than we could have imagined, and may be too late for us to fix.  God bless y'all, as usual, the big children need me to pick them up or the school will fine me 500/= for late pick-up. (seriously, they fine us if we pick the children up late!!)