Chapter 6 needs bold interpretation by Supreme Court

First published Sunday Standard, April 23, 2017. Kindly reproduced here with permission from Standard Group

The need for a leadership based on integrity is turning out to be the elephant in the shamba in these General Elections. Recently, hundreds of aspirants have been publicly accused and some even sued by the public, politicians and election governance bodies as unfit for public office.

Party leaders have drawn the line for aspirants who do the leadership and integrity threshold including the minimum educational qualifications, are indebted or bankrupt.  The Senate Public Accounts Investment Committee has called for six Governors to be barred from running again. Not to be left behind, Civic organizations and citizens have called on eight Governors, a hundred or so MCAs and former Cabinet Secretaries in court on procurement related fraud cases to be stopped from running. Social media has delighted in flashing school grades, university certificates and at some bizarre moment, even a birth certificate. In Chapter six, aspirants have found a new club to strike the incumbents.

Given the staggering levels of corruption, abuse of public office and conflict of interest this is comforting on one level. On the other, it has a created a cacophony of accusations and counter-accusations that one would expect in a rowdy boxing match.

Despite the clarity of Chapter Six, the Leadership and Integrity Act, Political Parties Act and its Elections Code of Conduct, the legal standards remain muddied by contradictory judgments in at least seven legal cases.  Just before the last General Elections, President Kenyatta and Deputy President Ruto were cleared to run for office on grounds that they were presumed innocent until the International Criminal Court found them guilty.

In other cases, courts have either ruled that voters should be left to exercise their judgement or the Court of Appeal has no jurisdiction. In others, the court has ruled that the disbarring of a Public Official by their professional association is sufficient to disqualify them from office.

Attempts to have John Ndirangu declared unfit to be a Member of Parliament due to a prior criminal conviction in 2004 were declined by the court on a technicality. Ferdinand Watitu was not so lucky, the court quashed his appointment to the Athi Water Board based on his lack of suitability for the position. If Jubilee clears him, he is now seeking an elective position as the future Kiambu Governor.

The inconsistencies of these court cases and the velocity of claims require clear determination by the highest court of the land. If this does not happen, we may lose this moment to give teeth and enforcement to the Constitution. It is for this reason, that the decision by the Kenyan National Commission on Human Rights to seek an Advisory Opinion from the Supreme Court is to be lauded. The petition seeks an authoritative legal opinion on the fit and proper test for leadership including elective and appointive office.  It would provide guidance to both the judiciary and vetting institutions on how to ensure that all persons seeking elective/appointive offices are suitable to govern or manage public offices.

The average voter is slowly wakening up to the need to monitor the wealth and lifestyle of leaders and aspirants. However, we have no means of collecting the information we need. Institutions such as EACC and IEBC would do well to make this information accessible to citizens as required by the Constitution as this will empower citizens to make informed choices.

While the criteria of leadership and integrity is framing the 2017 General Elections, it remains to be seen whether the winners will reflect the best leaders Kenya has. What the Supreme Court can now offer us is a formula to breathe life into Chapter Six, reject those that cannot be trusted with public office and prepare us for the leaders we so desperately need.

For more on this issue see Mzalendo Trust blog

Time to pull out the red-cards, the party primaries are upon us

First published Sunday Standard, April 16, 2017. Kindly reproduced here with permission from Standard Group

If you are like me, you may be wondering whether to have a sigh of relief or hold your breath this holy weekend. On one hand, the long-awaited rains have thankfully hit our farms and dams. Simultaneously, the elections are upon us. Over 20,000 individuals and their campaign teams have formally launched a scramble for 1,871 seats for the positions of Governor, MP, Senator and MCA. Only seven counties offer a real contest between the various parties. These seven counties contain “swing” constituencies in places like Nairobi, Narok and Garissa. For all the other parts of the country, the real election takes place over the next two weeks of the party primaries.

Depending on your level of “awokeness” you have probably internalized the elections calendar, are following IEBC and your party on twitter and Face Book and ready to flash your party membership card by now. For others, you are probably wondering why all the fuss given the elections are four months away. Is it necessary for all the aspirants to deface our walls with posters and why the sudden sensitivity of strangers to you wearing orange, red or yellow in public? Regardless of where this moment finds you, a hornet of bees has begun to swarm, and you, the voter, are the honey they seek.

From community leaders to corrupt public servants, distinguished businesspeople to disgraced doctors they come before the 19 million registered voters. Many seek public office to serve their own private interest while some have a vision for their ward, county and the nation. All will be pre-occupied with photo-shopping their profile, exercising their networks and resources to reach as many party supporters as possible. What ultimately matters is none of this.

The depth of corruption and impunity in our public offices and among us, the public, makes this election season a critical moment for continuity of the same or a radical break. The theft of public resources, national divisions and violence has become the new normal. Left unchecked, the seeds of corruption will grow into large trees of impunity spreading a dark shadow over us personally and the nation.

For this reason, we could do no better than start to note who the candidates are, what they stand for and as importantly, what their track records are. We must start asking the real questions in the house to house meetings, community dialogues and party rallies. What changes do they seek to bring about? How are they financing their campaigns? Who is paying for those T-shirts, posters and especially, those helicopters? Have they ever been mentioned adversely in the Office of the Auditor General’s reports, disbarred by their professional association, declared bankrupt or are they being prosecuted for economic crimes, bribery or fraud?

We can start demanding zero-tolerance of our churches, mosques and temples. No. We don’t want to turn our places of worship into political platforms and corruption havens for stolen tax-payers’ monies. We can challenge our integrity vetting institutions and especially the EACC and the IEBC to define and apply Chapter 6 without favoring one party aspirant over the other. If twenty-two players on the pitch and all the audience loses faith in the referee, not only does the referee lose power, we all lose the game.

The members and national party election boards across our sixty or so political parties also hold the future of our country now. The Constitution and various laws including the Political Parties Act requires political parties to set and enforce ethical and integrity requirements and procedures for identifying, vetting and approving aspiring candidates.

It is worth reminding our party leaders, there is a high cost of ineffectively doing this. Unethical party nominees will probably be subjected to costly public ridicule and rejection. They could also be disqualified by the IEBC or legally petitioned by responsible citizens. Lastly and most importantly, ferrying corrupt, divisive and violent aspirants into our public could open a hole that swallows the nation alive in future.

For me, I am printing red-cards and preparing to flash them in the face of anyone who offends our constitutional standard of Chapter 6 on leadership and integrity. Join me, I dare you

 

The vicious cycle of urban violence can be broken

First published Sunday Standard, April 9, 2017. Kindly reproduced here with permission from Standard Group

We have collapsed violent crimes, mob-justice and extra-judicial killings and our urban cities are traumatized. Last week, the nation reeled from an Eastleigh street execution. Within a week, six other cases had been reported. As I write, four men sit in Kayole police station. They are bruised, teeth missing and one had a bullet lodged in his leg. They await a habeas corpus application to have them produced in court to answer unknown criminal charges. A fifth was allegedly shot dead soon after his release.

Sadly, I have no comfort yet for those shocked by the Eastleigh execution. Extra-judicial killings are widespread and increasing. 206 people lost their lives last year, 65 more than 2015. Over 90% of them were jobless, poor and young men. As a jobless, poor and young man in Nairobi you are 26 times more likely to be summarily executed for suspected criminal activities than Bungoma, the county with the lowest number of deaths.

Many young men living in Nairobi’s Dandora, Mombasa’s Bangladeshi and Kisumu’s Nyalenda estates have between ten and fifteen interactions with the police per month. For those that turn to violent crime their life expectancy thereon is no more than three years. Shoot outs and the community matangas or “bridges” are frequent.

Talk to the mothers of these young men and they will tell you how they fear their boys turning fifteen and how they dream of sending them to live with extended family in rural or more affluent areas. A gender imbalance of one man to four women and fatherless families are the norm. Caught between the vicious cycle of poverty, violence and hopelessness, we are slowly losing a generation of young men.

Extrajudicial killings are deeply controversial. Those who support them cite court ineffectiveness and the clear and present danger of militarized youth gangs not just to communities but our police officers as well. Others argue that the killings are the misdeeds of a few rogue officers and not approved policing strategy.

Those against point to the law and order standards contained in our constitution, laws and policing policies. They argue that the unlawful use of deadly force is a rights violation. Further, this policing strategy discriminates by class. Tenderpreneurs and “high society” criminals are accorded their constitutional rights to arrest, representation and a fair hearing, why not poor suspects?

While all these views, as opinions, are valid, we are ignoring important questions. Have a few rogue officers with the consent of their seniors and sections of frightened communities come to define our urban policing strategy? Have some of our police officers got caught up in enforcing social order rather than effectively solving crime? Are communities creating unconstitutional rules and sanctions for managing crime that empower individual officers to act as de-facto investigator, prosecutor, judge and executioner?

As always, cutting through polarized discussions requires reframing around what we all can agree on. All of us (not just the rich) have the right to be safe from unlawful killings, torture and ill-treatment. All of us (and this includes law enforcement professionals) have the right to live and work in safe communities protected from violent and radicalized citizens and police officers.

The vicious cycle of violence can be broken. It requires deeper community policing strategies with youth organisations, greater command responsibility and action from within the police leadership and closer oversight by parliamentary, IPOA and Police Service Commission. A Presidential Judicial Enquiry is long overdue. Perhaps it is also time the 27 affected County Governments undertook their own inquiries. The source of this problem is as much poverty and unemployment as it is criminal and security.

Leaving our officers to individually impose social order in the context of corruption and inequalities will only escalate the violence and that, is not in the public interest.

Related readings from North America

No longer winter in America: Lessons for Kenya

First published Sunday Standard, April 2, 2017. Kindly reproduced here with permission from Standard Group

Viewed from Nairobi, North America appears even more polarized, intolerant and a deeply conflicted society since the last year’s elections. Looking more closely, something is stirring again that may not have been seen since the 1960s and it may have some lessons for us also.

Since the elections, over 1,000 attacks have happened against individuals and institutions associated with people of color, Muslims and Jews among others. Churches, mosques and synagogues have been vandalized and torched. Citizens of all racial, gender and sexual identities have been intimidated and attacked in public or in their own homes.

Provoked by new travel bans, hundreds of muslims found their visas denied or revoked on arrival by several airport authorities. Last month, the 2017 African Global Economic and Development Summit took place without any Africans when all 100 African delegates were denied travel visas to attend the annual conference. One wonders what the impact of this policy will be later this year when thousands of African, Arab and Asian students willing to pay exorbitant foreign fees seek student visas.

Even the internet has failed to escape. The rise of new psychographic technology, big data analytics, twitter bots, Facebook algorithms and fake news websites seem set to manufacture public consent on a scale never been imagined. The era of the alternative fact is upon us indeed.

This week also, the US foreign policy stool seemed set to lose its third leg. Proposals are being considered to cut funding assistance to the United Nations by 50% and USAID by 30%. America’s global influence will now have to rely on trade and defense in a world increasingly being dominated by China and India.

Polarization politics inevitably isolates those that practice it. The travel bans has already received a sharp rebuke from the African Union. Removing constitutional protections, increased policing powers and looking away when human rights are violated is high risk behavior for politicians not just in America but everywhere in the world.

The social cost is already being seen in America. Ironically under these circumstances, America’s once lazy democracy could be on the verge of being great again. Live streaming court cases and congressional hearings now rival the Kardashians and even Oprah Winfrey on most of America’s television and radio stations in popularity.

Current opinion polls suggest that 87% of Americans still believe in open and fair national elections, 79% uphold the right of citizens to politically protest and 64% advocate for news organisations to be able to report news freely.

For the first time since the sixties and seventies, active citizenship and acting in the public interest is cool again. Millions of citizens now know their state and federal officials and thousands, many of them women, are considering running for state positions themselves. Attendance at town-hall meetings have swelled ten-fold resourced by civic organisations.

Within the first 48 hours of the travel ban, citizens and companies contributed $42 million into the legal defense fund of the American Civil Liberties Union. Thousands swarmed America’s airports supported by pro-bono lawyers filing habeas corpus and gathering affidavits from arriving immigrants. A campaign is now underway to turn cities into sanctuaries of safety for undocumented workers. Austin, Seattle, San Jose, San Francisco and Oakland have already evoked state laws to prohibit racial profiling, detention and deportation.

Constitutional values of non-discrimination and justice are on people’s lips and the placards on marches. Remarkably, most mobilization has been peaceful and free of arrests. Even the numbers of the highly successful multi-city women’s march may be eclipsed by the Climate march planned this month.

The power of Americans organizing today is simple. Vividly connect all the issues, organize in the spaces where injustice takes place and keep it peaceful and inclusive. Occupy the narrative. Undocumented workers are not just immigrants but DREAMers paying taxes and contributing to American economy while building a future for  themselves and their families.

Some of my readers may miss America’s message to us. One or two current and aspiring leaders may even fear the prospect of activist Kenyan citizens. They may prefer to entertain them in rallies, bribe them with bank notes and comfort them with false promises. They can learn something about popular leadership from Alexandre Ledru-Rollin who once said, “There go the people. I must follow them for I am their leader.” Leaders who listen and follow their people don’t need to buy their support.

Responsible and empowered citizenship cannot exist in the same mind space as hopelessness, uncertainty and fear. If Kenyans are to serve higher than self, then we need leaders to believe in us. Not the some of us who share their gender, class, ethnicity or sexual orientation but in all 44 million of us. Until we get these leaders, we can borrow a leaf from America today. Our choices and collective actions have far more power to affect our lives than any context. Nothing is pre-destined, everything in our future depends on what we do today.

Clean, green and quiet cities is what we need

First published Sunday Standard, March 26, 2017. Kindly reproduced here with permission from Standard Group

The theatre of politricks took on new levels of crazy this week. Supporters of Maina Kamanda and Mike Sonko brawled to pack the JP Nairobi County Elections Board with their agents. In their enthusiasm, they all but forgot that the party board is supposed to be independent. In another part of the city, Magnate Ventures Limited was accused of felling 200-year-old indigenous trees to erect massive bill boards that will no doubt carry the faces of the same political aspirants in future. The electoral season scorches the green city under the sun in different ways.

Like many towns across Kenya, the clean, green and quiet city under the sun is slowly turning dirty, grey and unpleasantly noisy. A culture of encroachment stalks us. It leaves city by-laws violated, an unplanned sprawl and overstretched infrastructure in its wake. Left un-arrested, a tale will soon be told of how an entire city became a slum.

50% of Nairobi’s 4 million inhabitants live in informal settlements without proper services and security of title. They and their middle-class cousins discharge effluent and waste into all the tributaries of the Nairobi river. Other residents block public roads with private gates in their rush to keep “others” out. Unregulated bore holes by residents and businesses is draining our water table. Construction permits are given to developers who build soon to be empty huge grey apartment blocks on every inch of their properties. The children who will occupy them will be called watoto wa calbro. Noisy night-clubs are issued commercial licenses to operate in the very same residential areas. Not yet moved to act? Consider that in just 13 years, Nairobi will have doubled and have a population of 9 million people.

Encroachment is defined as the gradual taking away or the use of something that belongs to another person. Last time I checked, encroachment wasn’t one of the national values in our constitution but it is happening all around us and there are many threats to clean, green and quiet cities.

Last week, Environment Cabinet Secretary Dr. Judy Wakhungu just took on one of these threats. She gave legal notice to ban polythene bags in 6 months. The manufacturers have block this twice in 2007 and 2011. Last week also, the Kenya Association of Manufacturers reminded us, this is still big business for 176 companies and 60,000 employees.

While each bag is probably useful for only ten minutes of convenience, the impact is dramatically seen from the Mombasa coastline to the dry-lands of Garissa. Plastic waste litters all corners of this country. What’s worse is that we are probably eating micro-plastic fragments along with goats and fish who consume them in our landfills and waterbodies. Kenya is a late-comer to the ban as 40 other countries have already done this.

The promise by Nairobi Governor Kidero to pursue and arrest all companies that cut down trees in the city must also be supported. It was significant that a Jubilee MCA blew the whistle and a NASA Governor acted. Bi-partisan action is possible when issue-based priorities not personalities drive our politics.

Keeping our cities and towns quiet, clean and green is our business too. Citizens can emulate #Grey2GreenKE campaigns to plant trees in urban centers. We can use grocery bags for our shopping trips. We can also get more intimate with the National Environmental Management Authority regulations of 2009 that control noise pollution.

My friend didn’t. He built a house in an up-market suburb hoping to flee the fish bar that opened next to his home. His wife was less enthusiastic, after all, they had lived in the community for decades. The new up-market home went empty for a few months. To his horror, he found his new up-market neighbors had opened a bar and lounge and their patrons had secured a clandestine deal with his security guard to use their new garden for parking. The answer to noise pollution like all human rights violations is not to flee it but to confront it.

Most of our politicians are alpha humans. They are used to taking charge and can be intimidating. To have a healthy relationship with them we need to respect them, but above all, we need to consistently challenge them. In this season, they are operating at high speed, under siege from their competitors and booked solid. However, we do have their attention for the next six months.

Let’s make quiet, clean and green cities an issue for them and us. The alternative is watch them cut down our environment for their posters.

Office Lens 20170326-060912

Auditor General Ouko’s ouster unhealthy for oversight

First published Sunday Standard, March 19, 2017. Kindly reproduced here with permission from Standard Group who saw carried the same issue as their lead editorial on the same day. Two days later, House Speaker Justin Muturi wisely called off the House probe.

Born to parents Dr. William and Martha Ouko, the young Eddie was a quiet, introspective child who often kept the peace among his six other siblings. He demonstrated leadership at a young age by becoming Head of School and captain to both the rugby and football teams at the then Prince of Wales School (Nairobi School).

Armed with a B. Com (Hons) in Finance and Accounting from the University of Nairobi, he worked internationally first for Deloitte, Haskins and Sells in London and then for twenty-five years with the African Development Bank. By the time he left the AfDB as its Auditor General, he was directing anti-corruption and fraud investigations and audits into US$ 100 billion worth of investment across 139 development projects in 53 countries.

Regardless what you think about the allegations of corruption and misuse of office before the National Assembly today, it is unquestionable that Edward Ouko is probably Kenya’s most accomplished and highly regarded Auditor internationally to date.

Readers of a future biography will probably have whiplash trying to compare this part of his life and the last three years as Auditor-General of the Republic of Kenya. There have been no less than fifteen attempts to intimidate, prosecute, cut funding and curtail the mandate of the office over this period. The most recent of these attempts, a fast-tracked petition before the National Assembly continues to suffer from uncertainty over the identity(ies) of the petitioner, lacks evidence and the process to date falls short of the legal threshold of fair administrative justice.

His experience has attracted national and given Ouko’s global status, international attention. In many ways, how this flimsy case will be treated represents a line in the soil under our feet. It directly threatens the independence of an important over-sight institution. It risks the stability of a credible anti-corruption institution at moment when the very soul of our state is being literally robbed in broad daylight. Lastly, it brings into question whether honest accounting and audit professionals have a future in Kenya.

Globally, the accounting profession is only a few hundred years old. Less than four hundred years separates the establishment of the very first association of accountants in Venice in 1581 and our own Institute of Certified Public Accountants formed in 1978. Next year, Kenya will celebrate only forty years of the profession. It is still a young and maturing profession and we must protect it.

With this background, the silence from some quarters disturbs me. Kenya has 18 independent offices and constitutional commissions. It is curious that none of them have publicly or consistently commented on the way the OAG is being pursued. The Government’s chief legal adviser The Attorney General has been similarly quiet even after two High Court Judges issued desist orders to the National Assembly this week.

On the other hand, several individual MPs and Senators have privately expressed their frustration with the petition in the corridors of the National Assembly and Senate. Governance and accountability CSOs and Ouko’s own professional association The Institute of Certified Public Accountants of Kenya have urged the National Assembly to rethink its approach. President Kenyatta’s reassurance during his State of the Nation address of his administration’s support for the effective functioning and protection of independent bodies was welcome. We may have to wait until Tuesday to see if House Speaker Justin Muturi was listening when he may rule on how to proceed with the petition.

The legal complication of contempt of court aside, the petition remains weak. Recommending the establishment of a Tribunal and the stepping aside of Dr. Edward Ouko to the President would be tantamount to the state eating one of its own institutions.

Nile perch have been known to feed on each other and hens eat their own eggs, but cannibalizing an independent office whose mandate is protecting public funds is not in anyone’s real interest. The recommendation would also be tantamount to throwing a curve ball to the Presidency in full public sight at a delicate electoral hour.

Alternatively, assured that it has been fully heard, the House Speaker could dismiss this petition and bring this awkward saga to an end. Should the Speaker be concerned about the most serious of the allegations namely the procurement of the Oracle audit software, he could urge the case be expedited as recommended by the Director of Public Prosecutions.

Dismissal of this petition would eliminate a growing fear that honest and courageous Auditors and Public Accountants are not an endangered species in Kenya. It would also send a global message that we will not destroy professionals and institutions to win elections or inflict revenge on those who speak inconvenient truths to the executive.

Devolution still holds great promise for us

First published Sunday Standard, March 5, 2017. Kindly reproduced here with permission from Standard Group

This week’s Devolution Conference left me with both a sense of achievement and expectation. The first phase of devolution is coming to an end but the journey to self-governance, public empowerment and universal public services has just started.

Overall, all devolutionaries can be justifiably proud of the significant shift of political and financial power to 47 smaller governance units in line with Article 174 of the constitution. New oversight mechanisms like the County Assemblies, right to information and public participation laws and county fora have expanded the space for citizens to influence local governance. Counties now receive substantial flows in revenue from National Government and some like Kiambu County have successfully begun to generate domestic taxation to meet the gaps.

The greatest challenge to the next round of County Governments is the endemic abuse of office and corruption. Over the last five years, no single County Government has escaped the censure of the Office of the Auditor General or the Ethics and Anti-Corruption Commission. Procurement abuse, bid-rigging and conflict of interest has created overnight village millionaires, a mini helicopter-industry and too many frequent-flyers in a time of famine, disease and insecurity.

It is in this context, that all Kenyans of sound mind must vigorously support the growing non-partisan campaign to de-list all election aspirants that fall short of the standard of Chapter 6. This initiative realizes that impunity is not just the bad behavior of public leaders, it is primarily the relationship between them and the public. Thieves seeking to be elected stand advised that there is a growing voter opinion that will red-card and lock out, roughly half of all current County Assembly Members and Governors.

This time, leaders working in the public interest will have the benefit of an emergent informed, vocal and empowered public. 70% of Kenyans can now distinguish between the different roles of an MCA and a Member of Parliament. A growing percentage are now using county websites, Face Book pages and ward meetings to exercise their right to inform their county governments decisions. All are now demanding an end to the high cost of living and trading, poor services and wastage.

However, 1 in 3 Kenyans still think they must travel to county offices for information and services. 3 in 5 Kenyans have never been to a county meeting and think they are a waste of time. The hudumarisation and extension of information and services must continue. This will make it easier for citizens to indirectly interact with their administrators. In turn, the administration’s investment will be better protected and used by citizens.

Devolution doubters can park their skepticism. The quality of public services is slowly transforming this country. It is happening in some of the most unlikely places. The experiences of new mothers Halima Abdullah and Khadijah Mohamed of Mandera County offer a promise that no mother need die while giving birth. Pre-primary school children are now increasingly accessing early childhood services. This week, Naivasha based trader Esther Nyokabi spoke powerfully of the difference new market-sheds and reducing the cost of doing business would make for her life.

Some real uncertainties remain. Too many counties still experience insecurity and a lack of public safety. The protracted health-crisis rages without a comprehensive solution. Despite the welcome presence of the President at this week’s conference after two previous no-shows, there remains too much tension between the two tiers of Government. The next set of 48 Governments must seek to transform this.

Considering the above, is devolution still popular among Kenyans after five years? Surveys seem to suggest it is. In any case, it is worth remembering that major political movements in history were unpopular in their time. Most Kenyans in the late 1950s thought the actions of the Mau Mau would hurt the cause of national independence and majority. 60% of North Americans in the 1960s thought civic rights sit-ins, mass demonstrations and pickets led by Dr. King Jnr. and the Freedom Riders would hurt the cause of civil rights. Most Kenyans in the 1990s thought the struggle for democracy and constitutionalism was a fringe issue and hopeless. Today, we all know the value these struggles for change have brought to our lives.

If boldness is not always popular, then it is also true that populism is not always bold. As aspirants court our ward and county votes over the next few months, we need to look carefully at both their proposals and personalities. We can influence their actions and in the process, we can take devolution to the next level.