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KENYA ON TRIAL: Truth, Justice and the Supreme Court

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Waiting to exhale

Confronted on his excesses, abuses and disregard of rights of the people of France, Louis XVI responded, “L etat c’est moi”, “I am the State”. That was in 1715. Louis was tried by the people and executed. Four centuries later, Zaire’s Mobutu Seseko repeated Louis’ “royal liturgy” to a French journalist. Mobutu went further; he pronounced himself God. Mobutu fled and died in exile.

Entitlement is a malaise that afflicts absolute rulers. It thrives where law is what the ruler decrees it is; not the people, through their Courts. Where the peoples’ sovereign franchise prevails, and truth, justice and the rule of law governs the affairs of man, there is tranquility.

World attention today focuses on the Supreme Court of Kenya. The Court will, for the second time in a row, hear and rule on whether President Uhuru Kenyatta was validly elected for a second term. Just as in 2013, the suitor is former Prime Minister Raila Amolo Odinga. Raila says he has “given the Court a second chance to redeem itself.”

On 13th August, Raila protested the declaration of Uhuru as winner, accusing the Independent Electoral and Boundaries Commission (IEBC) of subverting the will of the people, not once, but for the third consecutive time and substituting it with the dictate of a minority ruling elite.

Having initially vowed not to contest it in Court, but rather through other means, he claims that a crackdown on human rights organizations expected to do that necessitated the change of tact.

What is Raila’s case? How did Kenya end up here? Is there cause for concern or alarm on the Court? Will the Court decide otherwise than before and with what consequences?

Case summary

The petition claims that “the Presidential Election was so badly conducted and marred with irregularities that it does not matter who won or was declared as the winner of the Presidential Election…Instead of giving effect to the sovereign will of the Kenyan people, the IEBC delivered preconceived and predetermined computer generated leaders.”

The IEBC is accused of interfering with the Kenya Integrated Elections Management System (KIEMS) and unilaterally disbanding the Elections Technology Advisory Committee (ETAC).

Whereas people voted, the IEBC did not count and tally the results. It adopted Joseph Stalin’s principle, “It is enough that the people know there was an election. The people who cast the votes decide nothing. The people who count the votes decide everything.”

Evidence in support of the case is contained in a voluminous record of over 25,000 pages. The evidence supports 12 main issues.

The IEBC is accused of interfering with the Kenya Integrated Elections Management System (KIEMS) and unilaterally disbanding the Elections Technology Advisory Committee (ETAC).

KIEMS is a single unit electronic platform. It was intended to ensure that voters are biometrically identified, and polling results transmitted and declared in a simple, accurate, verifiable, secure, accountable and transparent manner. These tenets of a free and fair election are anchored in the Constitution and the 2017 amendments to the Elections Act.

It is alleged that the IEBC had, through a proxy, sought to declare unconstitutional the law that requires biometric voter identification and electronic transmission of results from polling stations to the Constituency Tallying Center and the National Tallying Center. The case was filed by a third party against the IEBC but through a lawyer who is on the advisory panel of the IEBC.

Though not determined at the time of the elections, Raila believes that the case was filed with the connivance of the IEBC to sabotage the integrated, electronic electoral management system. He claims that the manipulation of the system resulted in a permanent pre-set 11% margin between him and Uhuru. It is Raila’s position that the outcome of the case would, as did the manipulation of the system, countermand the requirement for finality of results declared at 290 Constituencies established under the Constitution.

The finality of Constituency results was affirmed by the Court of Appeal. It would remove the risk of rigging at the National Tallying Center as recommended by Judge Johann Kriegler in his report following the disputed 2007 elections.

The ETAC’s function was to advise on adoption and implementation of election technology. It entailed the participation of stakeholders, in this case, candidates and political parties in the elections. In a Judgement made on 15th June, 2017, the High Court held that the requirement for a professional audit of the voter register 6 months before the election was overtaken by events. The Court further declared unconstitutional, the law establishing ETAC.

It is Raila’s complaint that being a stakeholder he ought to have been notified of the proceedings leading to the disbandment of the ETAC and that the IEBC intentionally failed to defend the case properly. As a result, the disbandment compromised the transparency of IEBC’s preparation for the elections. The IEBC then monopolized the management of the electronic voter system to the exclusion of other players. This, it is claimed, enabled manipulation in the transmission of results that could not be independently verified.

The IEBC is also accused of intentionally supplementing its server on a private cloud. The decision was made contrary to advice from the Communications Authority of Kenya. KIEMS became vulnerable to intrusion and manipulation.

Raila claims that 2 days to the elections, the IEBC designated 11,000 polling stations outside 3-4 G network coverage. There was not sufficient notice or time for Raila to appoint his agents in those stations. Results from those stations account for over 7.7 million votes and cannot be verified in the manner prescribed by law and intended by KIEMS.

The IEBC is also accused of intentionally supplementing its server on a private cloud. The decision was made contrary to advice from the Communications Authority of Kenya. KIEMS became vulnerable to intrusion and manipulation. The murder of IEBC’s ICT Manager Chris Msando a few days to the election is claimed to have been planned. His password or information obtained from him were used to infiltrate KIEMS, create and relay computer generated results.

Uhuru is accused of unduly influencing and inducing voters with 2007/2008 post-election reparation payments, hurriedly launched projects and advertisement of his administration’s achievements. He is said to have intimidated voters in his campaigns with military deployments and outright threats on public servants. A widely publicized incident in Makueni where Chiefs were threatened is cited. Uhuru is alleged to have used state resources and State Officers, in particular Cabinet Secretaries, to actively solicit for votes contrary to law.

Raila’s agents are also said to have been ejected from polling stations in Central Kenya and Rift Valley. It is claimed that they were replaced by those procured by Uhuru’s Jubilee Party. Massive manipulation of results is claimed to have ensued as a result.

KIEMS was designed to transmit results from polling stations to the Constituency and the National Tallying Centers simultaneously with electronic images of Forms 34As. It would also enable electronic transmission of final results from the Constituency level to the National Tallying Center. Form 34A is the official declaration at the polling stations whilst Form 34B is for the Constituency declaration.

However, provisional results are alleged to have been transmitted from polling stations to the National Tallying Center, bypassing the Constituency Tallying Centers. The results were not accompanied by Forms 34A and 34B. The results were said to be provisional, again, in disregard of the Court of Appeal decision. 10,000 stations with 5 million votes were affected. The complaint by Raila is that this was a precursor to the rigging of the election in favour of Uhuru.

Further, the petition claims that scrutiny of spoilt and rejected votes would reveal that nearly 400,000 votes were deducted from Raila and added to Uhuru. It is alleged that the manipulation and doctoring of Forms 34A and 34B means another 7 million votes cannot be authenticated.

Raila states that the declaration of a winner was made prematurely in the absence of 11,883 supporting Forms 34A and 187 Forms 34B. 3.5 million votes are affected. He also wants the Supreme Court to go against the precedent it set in 2013 and have rejected votes, this time numbering 477,196 or 2.6% of votes cast, considered when ascertaining whether the Constitutional threshold of 50% plus 1 has been crossed.

The great trek

Kenya gained internal self-rule and political independence from the then British Empire 5 decades ago. The Union Jack quickly came down. The Kenyan flag was hoisted. Jomo Kenyatta was appointed Prime Minister by the colonial Governor-General and one year later declared President by parliament. The Lancaster Constitution did not provide a term limit for the Presidency. The leader of the dominant political party was appointed President by acclamation in periodic parliamentary elections, whose occurrence he controlled. Kenyatta being the leader of the Kenya National African National Union (KANU) party would rule for life, for 15 years. Kenyatta was succeeded by Daniel Arap Moi. Moi ruled for 24 years; 14 for life and 10 on a 5 year term.

In 2013, Raila challenged the election of Uhuru. The Supreme Court jettisoned all evidence before it. It then proceeded to dismiss the Petition, in reliance upon decisions from Nigeria, Gabon and Uganda.

The British had an elaborate law for periodic election of their Prime Minister back at home. They saw no need for the same in Kenya, or any of their former colonies which did not have established political systems in place. With the exception of India, which embraced democratic rule at inception, former British colonies suffered absolute leadership until after the collapse of the Soviet Union and the second liberation in the 1990s.

In the intervening period, a change in government in the Commonwealth was effected in two ways only; a coup or the natural or unnatural death of the President. Determinations by Courts on the legitimacy of the regimes were unheard of.

In Uganda, Judges declared unconstitutional the government of Idi Amin upon the overthrow of Milton Obote. They were killed on the same day. Whitehall often supported similar governments in the entire Commonwealth. Without periodic elections, there was no precedent for a Presidential Election Petition.

The clamor for change saw to the re-introduction of multi-party politics in 1992. Moi won the Presidential Election despite a determined opposition wave. A Petition by Kenneth Matiba was dismissed by the High Court and Court of Appeal without a hearing. The requirement for personal service upon Moi and signature of the Petition by Matiba, who could not because he was ill, were technical considerations relied upon by the Courts. A petition by Mwai Kibaki upon Moi’s re-election in 1997 suffered the same fate. The Courts had no semblance of independence. The President controlled the Courts. A Petition against his election was doomed to fail.

The 2003 election of Kibaki was not challenged in Court; it was not even disputed. Kibaki had defeated Uhuru with a landslide victory. Uhuru had largely been viewed as Moi’s project. The people had resolved to overrule Moi’s prophesy that the independence party, KANU, would rule Kenya for 100 years.

Kibaki’s re-election in 2007 was highly disputed. It is widely believed to have been stolen from Raila. Raila did not go to the Courts as they were controlled by the President. The post-election violence that ensued resulted in the unhappy marriage between Kibaki and Raila. One outstanding achievement of the Grand Coalition Government was the promulgation of the 2010 Constitution. An elaborate process for the period election of the President and determination of a dispute arising from the election was put in place. The Supreme Court was created specifically for this function, with a minimum of 5 and maximum of 7 Judges as quorum.

In the aftermath, radical changes in the Judiciary sent packing Court of Appeal Judges who presided over the Petitions by Matiba and Kibaki. This was a pointer to the Supreme Court that the issue of election of the President was not that simplistic and legalistic. It is one that must be considered on the wider public interest, to uphold the popular will of the people and the Constitution.

In 2013, Raila challenged the election of Uhuru. The Supreme Court jettisoned all evidence before it. It then proceeded to dismiss the Petition, in reliance upon decisions from Nigeria, Gabon and Uganda. These countries, unlike Kenya, had experienced the full brunt of authoritarian military rule. Their Courts could not be objective. In fact, this was the first time a Kenyan Court took refuge in decisions from such countries.

The 2013 decision set an unreasonably high standard and burden of proof. It was not different from Matiba and Kibaki earlier decisions. The legal fraternity in Kenya and worldwide has condemned, trashed and shelved it as bad law. The Supreme Court could be forgiven for arriving at the decision since the Constitution was nascent and barely 2 years old. The Court itself was only a year old. Though composed of highly learned minds, three of the Judges, including the President of the Court, were in their novitiate, having been appointed from outside of the Judiciary and with limited or no courtroom experience at all. This was their first election petition they were handling and were confounded by the magnitude of the exercise and perhaps scared of the consequences of their decision. They may have played safe and sacrificed truth, justice and the law.

This was their first election petition they were handling and were confounded by the magnitude of the exercise and perhaps scared of the consequences of their decision. They may have played safe and sacrificed truth, justice and the law.

The Supreme Court’s image has since then been dented by credibility concerns. Unconcluded investigations for bribery involving one of the Supreme Court Judges demonstrated that the Court was susceptible to manipulation and compromise. It does not better the case when two Senior Counsel who accused the Judge, as well as an Advocate who was alleged to have conveyed the bribe as well as the Judge’s Advocate, a senior counsel, will act together for some of the parties in the current Petition.

That thwarted attempts by President Kenyatta to have a final say in the appointment of the Chief Justice, who is the President of the Court, publicly played out during the retirement case for two of its Judges, both matters again involving the three Senior Counsel cannot be overlooked. In his election campaigns in Kisii, Uhuru recently stated that he had appointed their son the Chief Justice. The Judicial Service Commission quickly refuted this claim and reiterated its independence from the Presidency. It was too little too late. The damage had already been done and aspersions cast. There is therefore, profound merit in Raila’s call for redemption.

Collective success or failure of the Court

The 2017 Petition will be decided in a polarized setting. Both parties are on record, attacking the judiciary whenever a decision goes against them. Several Judges of the High Court and Court of Appeal recused themselves from pre-election cases. They did so out of fear or to escape the badge of bias.

A bench to hear the case by Raila’s coalition, seeking that the election be conducted solely on an electronic basis, the IEBC having failed to make regulations for a manual back was constituted of Judges outside the Constitutional Division of the High Court. The Presiding Judge, Odunga had been accused by Jubilee Party of being compromised to rule in favour of the opposition. The Judge and his other two colleagues in the Division would not feature in subsequent benches set up by the Chief Justice. At the Court of Appeal, three Judges recused themselves on account of their handling of previous electoral cases, real or perceived relations with some of the Advocates or the parties. The outcome is the same. It is an indicator that Courts could still be subject to accusations of manipulation from litigants.

The Supreme Court suffers a numerical disadvantage. It has 7 Judges, all of whom may sit, going by the precedent of 2013. Whereas 5 Judges constitute quorum, it is unlikely that the earlier precedent will be departed from. None can be recused on account of bias, compromise, relations or affiliations with the parties or their advocates. It is, however, troubling that most of these Judges share Advocates with the parties appearing in the petition. It is very untidy. Suspicions of possible bias and compromise cannot be dismissed. This calls for extra caution and vigilance.

There is a popular view that the Judges should declare their interests if any and possible conflict. The Judges should write their individual decisions. Indeed, that is the practice in the Commonwealth. It was the practice adopted by the Court of Appeal until recently, when it appears to have been abandoned. The only way to ensure judicial fidelity and interrogate judges’ Jurisprudential Quotient, is to test their individual decision-making abilities. They should not hide in the cocoon of collective success or failure. This conduct amounts to judicial laziness.

Repeat performance or improvement?

Approval and dismissal of merits of the petition is as varied as is the public support for Raila and Uhuru. Raila’s side perceive a strong case, better than the first one. Uhuru’s team consider the case much weaker. Viewed objectively, it is a case of desire for justice on the part of Raila and one of a sure win on the part of Uhuru. This is likely to play out in Court.

The 2017 Petition will be decided in a polarized setting. Both parties are on record, attacking the judiciary whenever a decision goes against them.

The only difference between a Presidential Election Petition and a National Assembly Election Petition is the volume. A Presidential Election is held in all 290 Constituencies. Intriguingly, the Petition must be heard and determined in 14 days. The other Petitions are heard and determined within 6 months.

The Supreme Court does not have the luxury of the High Court. It cannot recount, scrutinize and audit results from all 290 Constituencies. A decision must be based on pillars of “a free and a fair election”. International and national public policy must play a role also. The Supreme Court is empowered to depart from its previous decisions depending on the circumstances of the case or change in public policy. It is a delicate balance, but one that can be attained with a National Assembly Election Petition as a simulator.

Interference with KIEMS to transmit and project provisional results or to generate results contravened the Constitution. Such action would have gone against the decision of the Court of Appeal, in respect to the finality of results declared at the Constituency Tally Center. Publication of achievements, use of state resources and threats by a party to an election are election offences. Some of the State Officers are being investigated for possible prosecution. Uhuru’s election could be nullified on account of the election offences by his administration.

Massive inconsistencies and discrepancies of results in Forms 34A and 34B and in the IEBC portal could be indicative of manipulation towards a flawed electoral process. The 5 to 7 million votes claimed to have been affected is such a huge number that cannot be ignored. This limb of the case may be very strong on the fidelity of the electoral process. The demanded forensic examination of IEBC’s server and portal would establish whether there is a case. It remains to be seen how the Court will undertake a detailed examination of evidence within 14 days and order scrutiny and recount of votes to verify the numbers. If it does, the truth or falsity of Raila’s claim will unfold. The hasty announcement of the winner without the benefit of Forms 34B and before the completion of the tally, affecting over 3.5 million votes is a grave violation. The case seems to be strong on this limb.

The Supreme Court is not handicapped on precedent in the decision to be made. Resort to decisions from other countries alone is unnecessary. There are many locally decided cases that may be of guidance to the Court. Being a Court of law as well as public policy, numerous cases, not necessarily in respect to Presidential Election Petitions are available internationally and locally.

For example, the election of the Member of Parliament for Juja Constituency was challenged in the disputed 2007 General Election. The declared winner was the Chief Government whip for Kibaki’s wing in the Grand Coalition Government. Malpractices in the election mirrored those leveled against the election of Kibaki. The then Electoral Commission of Kenya was accused of subverting the popular will of the people and replacing it with a pre-determined choice of the ruling elite. The inconsistencies and manipulation of the declaration of results was so monumental that the election could not be sanitized by either a scrutiny or recount of the votes. The entire process was flawed. The election was therefore annulled.

The High Court pronounced itself thus; “One may ask why courts should hold an electoral body to a high standard in the performance of its duties. I think if there is any statutory body whose actions should be considered to be above the board and which should perform its duties to the required standard of integrity and probity, it should be the electoral commission. The electoral commission has a duty to inculcate and imbue confidence in the electorate that its process is transparent, free and fair.” Raila’s claim of manipulation of the entire electoral process would be based on principles set out in this decision. If the process is flawed, numbers or margin of difference between two candidates does not matter. The election may be invalidated without the need for scrutiny or recount of the votes.

 Of the election petitions subsequent to the 2013 elections that of Mathare Constituency attained distinction, in electoral law. The winner was from Raila’s Orange Democratic Movement. The loser, from Uhuru’s The National Alliance had been awarded the certificate. The High Court dismissed the petition. It held that results declared at the Constituency are not final and may be altered by the Chairman of the IEBC.

When called upon to review the issue, the Court of Appeal affirmed the finality of the declaration at the Constituency as the will of the people. The Court of Appeal held that it could not declare the claimant winner and directed that fresh election be held.

The dispute found its way to the Supreme Court. The decision by the Court came fast, crisp and sharp; “Apart from the priority attaching to the political and constitutional scheme for the election of representatives in governance agencies, the weight of the people’s franchise-interest is far too substantial to permit one official, or a couple of them, including the Returning Officer, unilaterally to undo the voters’ verdict, without having the matter resolved according to law, by the judicial organ of State.” The case supports Raila’s plea on finality of results declared at the Constituency level and fidelity of the process attendant to the declaration. It also buttresses the position in law that the IEBC cannot subvert the popular will of the people and replace it with that of a ruling elite.

That the petitioners in the two cases referred to won the by-elections that followed goes a long way to demonstrate how the electoral process can be subverted to defeat justice.

The complaint of use of State Officers and resources for campaign is one that Uhuru will be hard put to defend. It is well documented and publicly known. There is evidence in the Petition that the entire Government machinery from top bottom was deployed to campaign for Uhuru with threats to those perceived to rally behind the opposition. These events were concentrated within the campaign period and cannot be said to have been part and parcel of normal Government administrative duties.

The Public Officer Ethics Act and the Election Offences Act prohibit State Officers from engaging in politics, yet these Officers actively campaigned for Uhuru and defended their actions as part of Government business. Prohibited also is the advertisement of achievements for political gain. Raila has a strong case on this ground, supported by precedent.

The election of Moses Wetang’ula as Senator for Bungoma in 2013 was invalidated by the High Court. The decision was upheld by the Court of Appeal and the Supreme Court. The Courts found that the offences of bribery and voter treating had been proved and were sufficient to warrant the annulment of the election. In the words of the Supreme Court, “Moreover, we take judicial notice of the centrality of elections in the functioning of established governance bodies, as signaled by the Constitution in both general and specific terms. On that principle alone, a party found on fact to have befouled the electoral process, cannot maintain an argument that his or her offence may not be declared, save alongside that of other parties.” If Raila convinces the Court that Uhuru breached the law on the campaign trail, the Court could invalidate the election on the basis of this decision.

If Raila convinces the Court that Uhuru breached the law on the campaign trail, the Court could invalidate the election on the basis of this decision.

The case by Raila will have to be examined on the basis of these principles. If established, the Supreme Court would order a fresh election. The case could be dismissed if the evidence does not support the complaints before the Court.

The Austrian Court overturned results of election in which Alexander Van der Bellen narrowly beat far-right candidate Norbert Hofer for electoral malpractice. A South Korean court removed the President from office for abuse of office. The Brazilian senate impeached Brazilian President Dilma Rousseff for illegally manipulating government accounts. The Pakistan Supreme Court stripped the Prime Minister of his office, for corruption. Here in Kenya, former Deputy Chief Justice Nancy Baraza was removed from office for misbehaviour for merely pinching the nose of a security guard. The bar on integrity has been set high locally and internationally. The Court may be persuaded to use these out of court processes in arriving at a decision.

A majority of Kenyans feel that a minority ruling elite has since independence, acting through unlawful means, denied other regional and ethnic communities the legitimate opportunity to rule. That feeling may prevail, irrespective of whatever legally acceptable or meritorious outcome is to be made by the Court. It may be high time that a rotational presidency, on the basis of the 8 main regions or provinces Kenya was demarcated and administered from independence, is considered, if the law of winner takes it all will forever be used or abused.

The Supreme Court has many references for direction in determining whether the popular will of the people of Kenya was ousted. Its decision must be based, not only upon evidence and the law, but international and national public policy. “Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws”, said Plato. The Court must ensure that leaders act responsibly, without circumventing the law.

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Nelson Havi is a partner at Havi and Company Advocates

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TAMING THE INTERNET: The good, the bad and the ugly parts of the Computer Misuse and Cybercrimes Act 2018

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TAMING THE INTERNET: The good, the bad and the ugly parts of the Computer Misuse and Cybercrimes Act 2018

Imagine a world without the Internet.

Now imagine a world where you are not free to say what you want to and where your social media posts could land you in jail. There are those who would love this world. To them, the Internet is encumbered with bigoted, sadistic and misogynistic speech that must be reined in.

Conversely, there are those who see any attempts to regulate online conduct as impinging on their freedom of speech. They believe that once you open the gates for government control, you risk political control and ultimately the death of online democracy.

A third school of thought is that you can never tame the Internet. John Gilmore’s famous mantra comes to mind: “The net interprets censorship as damage and routes around it.” No matter the laws and policies put in place, bad actors will always find a way to be there.

Regulation of online conduct has now hit close to home. This week, President Uhuru Kenyatta signed into law the Computer Misuse and Cybercrimes Act 2018. Here is what it provides.

The expected

There are offences that are standard in cybercrime legislation across the globe. In Kenya’s case, this legislation was way overdue considering that Kenyans were relying on outdated statutes contained in the 1948 Penal Code and the 1998 Kenya Information and Communication Act to try digital crimes.

What most would simply refer to as “hacking” is now covered by the offences of unauthorised access, access with intent to commit a further offence, unauthorised interference and unauthorised interception. Hacking critical information infrastructure (very important public facilities) amounts to cyber espionage, which carries a hefty penalty – 20 years in prison and/or up to Sh10 million in fines.

Spying for Kenya’s enemies is also covered under cyber espionage. Each of these offences requires different prerequisites and carry a different sentence. Other variations of these offences are covered under computer fraud and computer forgery. It is laudable that the Act has included the use of social engineering in the list of offences.

Trading in hacking tools, password crackers and social engineering tools is now an offence. Possession of such tools with the intent to use them to commit an offence can earn one a fine of Sh10 million or ten years in jail. Nevertheless, the Act protects “white hat” hackers (computer security specialists who deliberately break into protected systems or networks to assess their security).

Disclosure of a password or access code without permission could lead to a three-year stint in jail, a Sh5 million fine or both. If any of these offences are committed on a protected computer system (government, banks, telecommunications or witness protection systems), the perpetrator gets an enhanced penalty. He or she may be imprisoned for two decades, pay a Sh25 million fine or both.

Sections on mutual assistance and international cooperation in the investigation of cybercrime are commonplace yet necessary given the borderless nature of the Internet. What the Act lacks is an express condition that requests for investigation from other countries that will be subjected to the same legal procedures as local investigations.

Disclosure of a password or access code without permission could lead to a three-year stint in jail, a Sh5 million fine or both. If any of these offences are committed on a protected computer system (government, banks, telecommunications or witness protection systems), the perpetrator gets an enhanced penalty. He or she may be imprisoned for two decades, pay a Sh25 million fine or both.

Finally, it wouldn’t be a complete Kenyan law without the establishment of yet another government body, so the National Computer and Cybercrimes Coordination Committee and its secretariat were created. The Committee has heavy representation by national government agencies. However, the absence of county government representation in the Committee is worrying as it is assumed that counties have no role to play in cybersecurity.

The progressive

The Internet comes with its own share of ills, which, if unchecked, can affect vulnerable groups in society. The natural reaction by legislatures the world over is to over-legislate on online conduct in the hope that the law could re-engineer social order to counter the ever increasing incidents of anarchy. However, a balance needs to be maintained between laws that could restore this order and laws that would have a chilling effect on online freedom. Here are some of the enacted offences that could be considered progressive.

Cyber harassment

The definition of this offence is wide enough to cover cyber stalking, cyber bullying, doxing, trolling and dogpiling. The determining factor is conduct that causes apprehension, detrimentally affects a person, or is indecent and gross. This offence carries with it a Sh20 million fine, a ten-year prison term or both.

Victims of ongoing cyber harassment will now be able to obtain court orders to put an end to the harassment. This order can be obtained at any time of the day, even outside court working hours. Since cyber harassment is often carried out by trolls hiding behind pseudo accounts, a court may order online service providers to provide the perpetrators’ subscriber information, including their name, address, location, email address and phone number.

The framing of the offence, however, presents ambiguity. It is not clear what amounts to “detrimentally affects a person” and “indecent and gross”. These are subjective judgements and could be used to undermine freedom of expression.

Child pornography

Children need overzealous protection online from perverts and sometimes from themselves. It is an offence to produce child pornography and publish it. Further, downloading, distributing, exhibiting, selling and “making child pornography available in any way” or simply having it on one’s device also amounts to an offence calling for a Sh20 million fine, 25 years in jail or both. Any material showing a child engaging in sexual conduct or a similarly poor depiction amounts to child pornography. An example of this would be the photos recently shared under the #IfikieWazazi trend.

The ambiguous

Clarity in the letter of the law is key. It is equally important that laws prescribing the elements of an offence do so objectively using conduct-specific words. This not only gives a clear guide to the Office of the Director of Public Prosecutions as to when they should bring a criminal charge but also reduces the risk of such a law being declared unconstitutional. Precision is one of the areas where the Act falls short. There is a likelihood that most charges brought under it will be terminated prematurely.

The offence of identity theft and impersonation forbids the fraudulent and dishonest use of the password or unique identification feature of another person. However, the Act offers no definition of what constitutes “unique identification features”. And what amounts to “dishonest” use? Is it possible that opening a social media account in the name of another person could now be considered impersonation? Parody accounts, which are used for social commentary, may be at risk.

Clarity in the letter of the law is key. It is equally important that laws prescribing the elements of an offence do so objectively using conduct-specific words. This not only gives a clear guide to the Office of the Director of Public Prosecutions as to when they should bring a criminal charge but also reduces the risk of such a law being declared unconstitutional. Precision is one of the areas where the Act falls short. There is a likelihood that most charges brought under it will be terminated prematurely.

It is now an offence to hide information that was delivered to you by mistake. Take an email for example. The content of the email may not be relevant to you. However, it is impossible to tell that you were not the intended recipient. The intention of such a provision is unclear.

Unlawfully destroying messages is also an offence. However, the Act does not spell out what amounts to unlawful destruction, which makes the provision baffling.

Section 37 makes it an offence to distribute obscene or intimate images of another person. Use of general words such as “obscene” and “intimate” in laws that limit freedom of expression is unconstitutional. The intention may have been to ban revenge pornography or posting of personal photographs without the subject’s consent. Regrettably, we may not realise this protection due to the ambiguous language used in the Act. Failure to restrict this offence to instances where photos are uploaded without consent means that it is generally illegal to post pornographic material online in Kenya, unless the subject of the material posts it.

In a surprising twist, the section on child pornography makes it illegal to download, distribute and disseminate pornographic material or making it available in any way. Could this mean that it is now illegal to watch pornographic material in Kenya even where the actors are adults? Will search engines such as Google be held culpable for “making available” pornographic material? As this is a section on child pornography, is it safer to assume that this was an error in drafting or was this deliberate?

The borderline unconstitutional

There are some sections in the Act that not only make good fodder for public debate but also raise constitutional issues.

Fake news

Any law banning certain types of speech finds itself in conflict with the constitutionally guaranteed freedoms of opinion and expression and of the press. While freedom of expression is not absolute, its limitation can only be to the extent allowed by the Constitution.

The Act has been nicknamed the “Fake News Law”. Two sections in the Act have earned it this moniker. One criminalises “false publications” and the other outlaws “publication of false information”. Is this a calculated ploy or a play on semantics? In both cases, the Act offers no definition of the word “publish”. It will be interesting to see the interpretation adopted by the courts.

The first of these, Section 22, makes it an offence to publish fake news with the intention to deceive people who may treat it as authentic. This offence carries with it a Sh5 million fine, two years in the slammer or both. An obvious dilemma is how the prosecutors will prove that the information was published with the intention to deceive.

The Act has been nicknamed the “Fake News Law”. Two sections in the Act have earned it this moniker. One criminalises “false publications” and the other outlaws “publication of false information”. Is this a calculated ploy or a play on semantics? In both cases, the Act offers no definition of the word “publish”. It will be interesting to see the interpretation adopted by the courts.

There is, however, a rider in Section 22(2) that states that freedom of expression does not extend to speech that amounts to propaganda for war, incitement to violence, hate speech, advocacy for ethnic hatred or discrimination, or fake news that negatively affects the rights and reputations of others. These are the exceptions allowed under Article 33 of the Constitution. Such a qualification is necessary for any law that purports to limit a constitutional freedom. The import of this is that any law restricting speech that does not fall into these categories is unconstitutional.

What this means, therefore, is that fake news is only an offence if it amounts to propaganda for war, incitement to violence, hate speech, advocacy for ethnic hatred, advocacy for discrimination, or if it negatively affects the rights and reputations of others. A person charged with the offence of false publication has the right to challenge the charge before a constitutional court if their speech does not fall under the forbidden categories.

The second fake news offence, Section 23, criminalises fake news that is calculated to cause or results in panic, chaos or violence. It also condemns fake news that is likely to discredit the reputation of a person. This offence attracts a Sh5 million fine, a ten-year sentence or both. This section runs afoul of the Constitution. For one, public order is no longer an acceptable limitation to the freedom of expression. This is because words such as panic and chaos are subjective. How do you determine panic or chaos? In addition, the High Court decided last year that an offence prescribing criminal defamation is unconstitutional. This section is likely to suffer a similar fate.

Government surveillance

Every person has the constitutional right to privacy, which means that they have the right not to have their person, home or property searched, to not to have information relating to their family or private affairs unnecessarily revealed and to not to have the privacy of their communications infringed.

However, it is sometimes necessary to impeach the right to privacy, especially to allow for investigation of criminal activity. What the Constitution requires is that such invasion of privacy be carried out according to clear procedures set out in law. The law that allows invasion of privacy by the government must be clear as to the extent of the limitation of the right to privacy. The investigation procedures in the Act feature some questionable provisions.

If a police officer wants to search or seize a computer in the investigation of an offence, they must obtain a search warrant from a court of law. The police officers will then make a list of all the information seized and allow one to copy the contents of the computer before taking it away.

ISPs to surrender subscriber information

As part of the investigative procedures, Internet service providers (ISPs) may be directed to submit information on any of its subscribers. This includes the name, address, location, email address and phone number. Further, they may be directed to either collect traffic data (identity of the sender and recipient of an email, its subject lines and size, titles of any attachments, websites visited by a user and the time spent at each website etc.) on behalf of the police or allow the police to tap into the ISP system in order to do so. Finally, ISPs may be directed to record the content of a subscriber’s communication and surrender it to the police or, alternatively, allow police officers to dock into the ISP’s system and collect the content data.

All these require court orders. This intermediate step of requiring judicial approval is a necessary check on police power. However, there is a catch. Where police officers consider an investigation “urgent”, they are allowed to bypass the courts and directly issue a notice to the ISP to surrender information concerning any of its subscribers. This is a worrying exception that is prone to abuse. It is possible for police officers to cunningly term all their investigations as urgent and go straight to the ISPs without involving the courts.

ISPs must comply with any police directives as failure to do so would amount to an offence. This is a blatant disregard of the right to privacy, and could be used as a form of retaliation against anti-government entities or individuals. The Act bestows too much authority on investigators/police officers, leaving Internet users vulnerable to the whims of the state or powerful individuals.

Where police officers consider an investigation “urgent”, they are allowed to bypass the courts and directly issue a notice to the ISP to surrender information concerning any of its subscribers. This is a worrying exception that is prone to abuse. It is possible for police officers to cunningly term all their investigations as urgent and go straight to the ISPs without involving the courts.

The unnecessary

 The approach taken by this Act is to criminalise all unpleasant online conduct, so much so that it has encroached on the preserve of civil law, which will lead to the overburdening of an already under-resourced Office of the Director of Public Prosecutions. Worse still, the drafting language in many of the sections is vague, which could lead to the dismissal of cases brought under the Act.

The aim of criminal law should be to protect the general interests of the public, not to serve private interests. Where personal loss is occasioned, civil law offers perfect remedies. To go a step further and provide for compensation orders, as Section 45 does, is to usurp the role of civil courts, which are best placed to award damages. Try as we might, it is impossible to restore moral virtue via criminal legislation.

The aim of criminal law should be to protect the general interests of the public, not to serve private interests. Where personal loss is occasioned, civil law offers perfect remedies.

Cybersquatting

Cybersquatting – the practice of registering domain names, especially of well-known companies, in the hope of re-selling them at a profit – is an offence punishable by a Sh200,000 fine, a two-year imprisonment or both. This would have been best handled under civil law as it raises concerns related to intellectual property and personality rights.

Reversing erroneous payments

More often than not, mobile money users make payments to the wrong recipient. Failure to reverse such erroneous payments is now an offence with a Sh200,000 fine, a two-year imprisonment or both. This is an example of criminalising conduct arising out of private affairs. It would have been more prudent to require a refund policy from the platforms that operate the mobile money service.

Reporting cyber attacks

Every computer user must now report every cyber attack to the National Computer and Cybercrimes Coordination Committee. Failure to do so is an offence. In fighting cybercrime, cooperation is key. Cooperation is achieved by reporting cyber attacks. This alerts other users of impeding attacks and makes it possible to crowd-source solutions. However, making failure to report such attacks a crime is extreme. In other jurisdictions, only large organisations dealing in large amounts of data and monetary transactions are required to report. Failure to do so is not criminal but attracts administrative fines.

Failure to surrender passwords after employment

This is yet another superfluous offence. At the end of a contract of employment, one should surrender passwords to company computers and access codes. Failure to do so constitutes an offence. This would ordinarily give rise to a civil claim for breach of contract, which makes criminalising of the offence needless. The law is thus encroaching on a matter that is already handled by employers through contracts with their employees.

This is what the Computer Misuse and Cybercrimes Act, 2018 provides. I hope that this equips you adequately to participate in public discourse on the Act.

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LESSONS FROM WAKANDA: Pan-Africanism as the antidote to robotisation

It is this era of intelligent robots – when there is a fuller convergence between genetic engineering and nanotechnology – biopolitical questions will become central to democratic questions within the Pan-African movement. This article describes the challenges in charting the differences between the Pan-African struggles from above, as manifested in organisations such as the African Union, and Pan-Africanism from below, as manifested in the Black Lives Matter movement. The author proposes that the Pan-African movement and the unification of Africa represent the frontline forces in the struggle to preserve humanity and save planet Earth from new threats, including unethical uses of biotechnology. Such unification is also premised on the quest for reparative justice, the perseverance of human life and the repair of the planet’s endangered ecosystem.

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LESSONS FROM WAKANDA: Pan-Africanism as the antidote to robotisation

In May 2013, the African Union launched Agenda 2063, a blueprint for an integrated, emancipated, prosperous and peaceful Africa. There was a renewed commitment to work for the full unification of Africa, with a common currency from one common bank of issue, a continental communication system, a common foreign policy and a common defence system featuring the African high command.

Five years later, Hollywood came out with a fictional story of a bountiful, independent African state called Wakanda in the film Black Panther. Wakanda was described as the most scientifically and technologically advanced civilisation in the world — not to mention the wealthiest.

It is not a coincidence that there is a straight line between the aspirations of the Global African Family, as expressed in Agenda 2063, and the depiction of a technologically advanced Africa. From the era of the writings of C. L. R James on the majesty of the Haitian Revolution to the current struggle for the dignity of black lives, the liberation and unification of Africa has always been presented as the basis for Pan-Africanism.

Examining the meaning of Pan-Africanism in the current context of massive technological change requires a new language and a new orientation – an orientation that breaks away from the stultifying concepts embraced by a class of leaders who have no loyalty to Africa and who seek to turn citizens into tribal nanobots without a spiritual core.

We are reminded that in this era of artificial intelligence (AI) the future of humanity is the struggle between humans that control machines and machines that control humans. The late Stephen Hawkins observed that artificial intelligence can be the worst event in the history of civilisation. He remarked that “unless we learn how to prepare for, and avoid, the potential risks, AI could be the worst event in the history of our civilisation. It brings dangers, like powerful autonomous weapons, or new ways for the few to oppress the many. It could bring great disruption to our economy.”

Examining the meaning of Pan-Africanism in the current context of massive technological change requires a new language and a new orientation – an orientation that breaks away from the stultifying concepts embraced by a class of leaders who have no loyalty to Africa and who seek to turn citizens into tribal nanobots without a spiritual core.

The exact meaning of life and the future of life forms are now new issues for humans in the era of synthetic life and technological singularity. In 2010, the human genome scientist J. Craig Venter reported that he had taken another step in his quest to create synthetic life, by synthesising an entire bacterial genome and using it to take over a cell. Scientists called this breakthrough a defining moment in the history of biology and biotechnology but the bioethical questions about who will have control over life brings back the debates on technological singularity when concerned citizens objected to those scientists who believed that they could play God. Pan-Africanist and those who want peace throughout the world have genuine reasons for paying attention to these scientific breakthroughs.

In this essay, I am reaching out to the youth of Africa to turn Wakanda from fiction to reality. Ta-Nehisi Coates, who wrote the book Between the World and Me for his son, has gone on to be one of the writers for the comic strip The Black Panther. In this way he was seeking to inspire his son that there was a future beyond the prison-military-financial-information complex and the hacking of the human brain by the technology corporations. This is important for all youth, but especially youth in East Africa, where the psychological warfare thrust of Empire has intensified efforts to shape the thoughts, feelings and actions of people. For example, we now know from the recent hearings in the US Congress and from the global activities of Cambridge Analytica, that there are technology firms that are programming people, literally hacking into the brains of the youth. Empire and its local allies are seeking to formalise this brain hacking in Africa into a university town in Kenya called Konza Technological City. Was it an accident that Mark Zuckerberg of Facebook visited Kenya and Nigeria?

Early phase of Pan-Africanism and opposition to being treated like robots

The first Pan-Africanists were opposed to the robotics of yesterday when the forms of enslavement on the plantations in the Americas treated Africans like “machines to make money”. The book by Edward Baptist, The Half Has Never Been Told: Slavery and the Making of American Capitalism, has documented this phase of the dehumanisation of the African person. This book elaborated on how Africans were treated like machines to enable American society to accumulate immense amounts of wealth to become the preeminent industrial power that it is today. The availability of cheap land and the shortage of labour led to a ruthless system of exploitation called the “pushing system” that enslaved people and which Baptist aptly describes as “innovation in violence”.

It was the vibrant Pan-Africanism at the grassroots that precipitated the rebellions against that form of robotisation. Bonds had been forged on the slave ships where that conception of freedom transcended the individual. It was then that the consciousness was cemented that no black person could be free until Africa was liberated. Herein lay the origins of the modern Pan-African movement. In the throes of the independence struggles, Kwame Nkrumah understood that the liberation of individual states was not enough; Africa had to be united to escape external economic domination.

Africa had been partitioned at the 1885 Berlin Conference on the grounds that Africans could not rule themselves and that they were heathens who needed to be civilised. Walter Rodney, in his book How Europe Underdeveloped Africa, argued that technological changes were turned to imperial purposes. Whether it was transportation technology, communications technology, military technology or the latest digital advances, human inventions changed the world and transformed life on Earth while at the same time transforming the power relations between societies. From partitioning, colonial plunder, apartheid and occupation, there were many borders instituted in Africa, including racial, ethnic, religious, territorial and sexual borders.

This partitioning and domination was executed through superior military technology (especially the Maxim gun) and by creating divisions. The small intelligentsia in the Global African Family were the main spokespersons for the ideas of African dignity and self-determination. At the popular level, the opposition to domination took cultural and religious forms, such as the rise of the Rastafari and Kimbango movements, Mourides and other social movements, such as the Garvey movement. African Scholars such as W.E. B DuBois convened international meetings that were called Pan-African Congresses that sought to bring together those with the agenda to liberate Africa from colonialism and to end lynching and segregation in the United States. There were five congresses between 1900 and 1945. The 1945 meeting brought together leaders such as Kwame Nkrumah, Amy Jacques Garvey, George Padmore, W.E.B. Dubois, Jomo Kenyatta and Ras Makonnen.

Walter Rodney, in his seminal book How Europe Underdeveloped Africa, argued that technological changes were turned to imperial purposes. Whether it was transportation technology, communications technology, military technology or the latest digital advances, human inventions changed the world and transformed life on Earth while at the same time transforming the power relations between societies.

Pan-Africanism from below was manifest in the consciousness of the ordinary Africans on both sides of the Atlantic. This brand of Pan-Africanism inspired the largest mass movement of the century on both sides of the Atlantic in the form of the Universal Negro Improvement Association (UNIA). Garveyism took root in the United States where the ideas of African vindication and redemption found a fertile base in a society that was struggling against the Ku Klux Klan and those extremist groups that made lynching a Saturday night outing. The UNIA had branches in all parts of the world, with its newspaper, the Negro World, acting as the voice of the Pan-African movement in the period of the Harlem Renaissance. The ambitious projects for the liberation of Africa excited ordinary workers and sufferers and branches of the UNIA were to be found in the USA, the Caribbean, South America, Europe and Africa. At its height, the UNIA had more than two million members. Kwame Nkrumah of Ghana was among the most prominent Pan-African activist thinkers and leaders who called on Africans to unite so that they could be free.

In the current period when white racism is growing in Europe and North America, especially with the election of Donald Trump in the USA and the emergence of racist and neo-Nazi groups all across Europe, it is worth remembering that the present currency wars, trade wars and actual interventions of the last Depression had also paved the way for the global imperialist 1939-1945 war. The rise of fascism internationally, (in particular, the coming to power of General Franco, Benito Mussolini, Antonio Salazar and Adolph Hitler) and the idea of white superiority posed a major challenge for all of humanity.

The Italian invasion of Abyssinia in 1935 was another moment when the Pan-African consciousness of Africans rose to become a force in international politics. The failure of the League of Nations to respond to the military atrocities of the Italians had led Africans to warn of the dangers of fascism and world war. In this sense, the global Pan-African movement was a major inspiration for those fighting against fascism in Spain, Portugal, Germany and Italy.

The idea of Ethiopianism, a variant of Pan-Africanism, had been widely held among Christianised Africans during the 19th century. Taking the biblical references to Ethiopia to be the basis for the rallying point around the independence of Africa, Ethiopianism represented a manifestation of spiritual and cultural autonomy for Pan-Africanists. In this period of fascism and war, Pan-African scholars, such as W.E B DuBois, George Padmore, C.L. R. James and Aime Cesaire, articulated the ideas of liberation and redemption. In the French-speaking territories, the idea of Negritude was another variant of Pan-Africanism.

The goals of liberation and emancipation at that moment were associated with the capture of state power and ending colonial rule. However, at the end of apartheid, the question of emancipation was understood to mean much more that seeking the “political kingdom”. African women from the grassroots are acting as a force to assert the humanity of African peoples and to redefine the culture of emancipation and liberation. It is, therefore, not by accident that transgender women are at the forefront of the struggles for black lives while the more backward men seek to kidnap African women and return them to enslavement a la Boko Haram.

Women at the grassroots are calling on intellectuals to grasp the fact that the culture of capitalism is wrapped in the attendant class and gendered structures along with racial and sexual oppression. Long before the prominence of the #Me Too Movement, black women were at the forefront of the fight for the integrity of the body. They had demanded that they will No Longer Be Controlled, Manipulated, or Abused

More significantly, these women are transcending the individualistic, racial and masculinist conceptions of Pan-Africanism and African unity. It is for this reason that the Pan-African revolutionary Micere Mugo proclaimed that Pan-Africanism was about the lived experience of the grassroots. She observed that “though not cited in intellectual discourses that have so far come to be the literary cannon on Pan-Africanism, in their activism, as well as participation, women were and have always been the heart of Pan-Africanism’s essence, or if you like, substance. Ordinary people, or the masses, including the majority of African women, have been the key keepers or carriers of this essence.”

Ubuntu confronts individualism, ethnic manipulation and private accumulation

The current convergence of multiple crises (economic, religious, environmental, technological and political) coincides with an increasing politicisation of ethnicity and regionalism. Liberal philosophies of governance have created the neoliberal nightmare where oligarchs and dynasties maintain political and economic power while dividing the mass of producers into “tribal”, regional and religious groups.

The philosophical basis for Pan-African liberation challenges the “ideology of tribalism” and the the materialistic conception of life, along with the masculinisation of the political spaces. In South Africa, for instance, the process of enrichment of a few has been accompanied by the politicisation of ethnicity. Leaders who benefitted from Pan-African solidarity during the struggle against apartheid are now promoting ethnic identification while supporting xenophobia against other Africans.

Currently, the yardstick of profit has become the only viable measure of the good life, while the commitment to Pan-African solidarity and opposition to imperialism are viewed by many politicians and their publics as either a hindrance to the goals of a market-driven society or alibis for gross theft and corresponding conspicuous consumption. Leaders beg for aid while stealing billions and lodging the loot in foreign bank accounts. They starve schools and hospitals of laboratories while purchasing outdated military equipment. At the level of communications technology and computer security, they are completely reliant on the enemies of Africa.

The crude materialism of Western “modernity” emanated from an understanding of the world where “rational” man was entrusted with the divine mission to rule non-whites because of the “will of God”. War and conquest were justified in linear terms of progress, from savagery to civilisation. Material goods, industrialisation, technological innovation and factories were presented as manifestations of God’s blessings for Europe and North America. Hence the spectacle of the religious spaces becoming the meeting place for deals and political campaigns.

The definition of human was determined by the extent to which these humans believed that human worth was based on accumulation of material wealth, wealth that was the basis for “progress”. Humans who did not internalise this understanding of the accumulation of wealth (a form of accumulation that took perverse forms when it matured into the capitalist mode of production) were considered backward and primitive. On the eugenic scale of Western modernity, Africans are still considered backward and primitive.

Western European approaches to life were considered “scientific” and hence objective and neutral. Classical liberalism emerged in a period when new forms of property in Europe replaced feudal ideas of privilege. Enlightenment thinking about property rights, the oppression of women, domination over nature, domination over non-whites and the universal right to domination became the legitimating idea for modes of economic organisation that engendered a tremendous boost in the production of goods. This unprecedented production of goods was worshipped to the point where commodity fetishism was like a new religion. It was in the spirit of this religion that religious institutions participated in the slave trade and the accumulation of vast amounts of wealth and military power. Today, commodity fetishism is exhibited by so-called “prosperity churches” whose evangelical mission is to make people believe that becoming rich is the Christian thing to do, and that material things are a blessing from Jesus. This religion also guides the new digital companies that are involved in psychological warfare against humans.

This unprecedented production of goods was worshipped to the point where commodity fetishism was like a new religion. It was in the spirit of this religion that religious institutions participated in the slave trade and the accumulation of vast amounts of wealth and military power. Today, commodity fetishism is exhibited by so-called “prosperity churches” whose evangelical mission is to make people believe that becoming rich is the Christian thing to do, and that material things are a blessing from Jesus.

Spirituality and commodities were conflated to lay the basis for a robotic society where cloning and bioengineered creatures (cyborgs) are the promise of the future. This is the future of the bioeconomy where synthetic life will be engineered in laboratories and scientists assign themselves the right to patent life forms. AI is now being refined in Silicon Valley to ensure the dominance of white supremacists in the international political system

According to a study by the United Nations Conference on Trade and Development (UNCTAD) more than a decade ago, in the bioeconomy industrial production moves from the use of fossil and mineral resources (coal, petroleum and natural gas) toward living biological raw materials, primarily biomass plant matter, such as woodchips, agricultural plants and algae. The bioeconomy is associated with wider application of modern biotechnologies in areas such as agriculture, medicine and industry. It was the late Calestous Juma who argued that African progressive scientists hold the key to ensuring that Africa leapfrogs the old forms of industrialisation in this the era of the digital revolution. Juma had noted that it is not necessary to build new paths of industrialisation in the bioeconomy based on past production of primary products; as the bioeconomy matures, the convergence of nanotechnology, information technology, biotechnology, robotics and cognitive sciences will provide a new basis for the post –industrial society.

African languages hold some of the key signposts of the refinement of cognitive technologies that are part of the assemblage of converting technologies (nanotechnology, information technology, biotechnology and robotics). For a short moment, the National Science Foundation of the USA and its scientists in California had mooted a project called the Human Cognome project to harness the understanding of cognitive psychology. According to the scientists who were promoting this enterprise, the Human Cognome Project had planned to span various scientific fields, including neuroscience, cognitive science, artificial intelligence and psychology. Africa as the fountain of homo sapiens was a key area of interest as were the early African languages.

In conjunction with this project was the Human Genographic project. Sponsored by the IBM Corporation and the National Geographic Society, its stated objective was to analyse more than 100,000 DNA samples collected from indigenous peoples. Given that the African peoples of East Africa count as the most original peoples of the human species, the peoples of East Africa were of particular interest for this Human Genographic project. Bioanthropologists were deployed to tap into the African knowledge of the oldest peoples of the planet who are still alive in East Africa.

There is now an effort to reverse-engineer the human brain by studying both its structure and function in order to fully understand mental processes, also known as cognition. The Human Genographic project has many parallels to the Human Genome Project. A better understanding of the cognome can illuminate how the brain perceives and responds to the environment, thereby augmenting artificial intelligence technology. It also has many important implications for the study of disease progression by observing changes in cognition to localised damage. A map of the cognome promises to increase mechanistic understandings of the brain. To further this research, bioanthropologists have tapped into the cell lines of the Hadza, the Iraqw, the Maasai, the Samburu, Sandawe, Shilook, Nuer, Turkana Dinka and San Peoples. These peoples are being studied to learn how to maximise AI capabilities to programme robots.

Pan-African unity and the quantum leap

The integration between the cognitive skills of Africans and the new thrust for a different kind of economic organisation will form the foundation for the qualitative leap in the new mode of economic organisation that will envelop Africa in the short and medium terms.

The world has changed dramatically during the past fifty years of the Pan-African project, presenting more complex possibilities for social and economic transformation. Wakanda gave one indication of what is possible when African knowledge systems, along with the principles of social collectivism, are unleashed for the good of society. One could see that the Wakanda people’s understanding of their links to their ancestors and to their totems prevented the complete robotisation of their society.

One can also see this in the movie trilogy The Matrix, where African oracles were able to separate real humans from cyborgs. It was less than twenty years ago when these science fiction images from Hollywood promised a future where information technologies would reign supreme and shape the lives and affairs of societies, including the lives and the very existence of individuals. Neoliberal futurists, such as Ray Kurzweil, who wrote the book The Singularity is Near, saw this as the era when humans would transcend biology. Kurzweil actual gave the date of 2045 when this new era of singularity would begin.

Wakanda gave one indication of what is possible when African knowledge systems, along with the principles of social collectivism, are unleashed for the good of society. One could see that the Wakanda people’s understanding of their links to their ancestors and to their totems prevented the complete robotisation of their society.

Bill Joy, in his now famous article in Wired magazine, “Why the Future Doesn’t Need Us”, warned of the dangers of the converging technologies. He argued that the new computer technologies provide a much greater danger to humanity than any technology before has ever presented. Stephen Hawkins sounded the same warning when he noted that the era of artificial intelligence could be “the worst event in the history of civilisation.

The African spirit, cognitive skills and ideation system provide a powerful antidote to the projections of the era of singularity. Organised within a transformed educational system where fractal mathematics are taught with fractal optimism, the transformation of Africa would break the distinction between the fiction and reality of Wakanda.

Students in the struggle for the decolonisation of knowledge are at the forefront of the Pan- African project to use African languages in higher education. The Kenyan writers Micere Mugo and Ngugi wa Thiong’o have been at the forefront of the promotion of the decolonisation of the medium of education. Ngugi has been resolute in his assertion that the decolonisation of the mind is the contemporary form of Pan-Africanism and the future relies on Africans empowering themselves with African culture, language and knowledge. This author has not only endorsed the importance of African languages, but also the tremendous possibilities that await technological change when African institutions of higher learning embrace fractal geometry and seek to link this knowledge of African fractals to the curriculum.

Few political pundits took seriously the comment made by Mark Zuckerberg of Facebook in 2016 that “Africa will build the future”. The efforts of Zuckerberg and Facebook to launch a special satellite for Third World countries designed to bring web connectivity to areas of the world with limited Internet access may seem altruistic, but forward planners in Silicon Valley already understand the dynamic socio-economic changes that will occur when African innovators move to new ventures beyond mobile money. Chris Msando, the computer expert and electoral official who was murdered prior to the Kenya’s elections last year, pointed to a future where computer savvy Africans would work to ensure real democratic processes. The same infrastructure of Cambridge Analytica that is now known for brain hacking collaborated in Africa with the same forces that eliminated Msando.

In this changing socio-economic environment of the digital present, where information is controlled to shape perceptions, the African people at home and abroad are faced with new powerful economic forces that are reshaping the global landscape, reconfiguring existing organisations/ institutions and creating new ones. In the midst of this change, the institutions of the US military and finance, along with the other NATO powers, promote worn-out ideas that label African people and societies as failing and failed societies. The US President exceeded this academic discourse by labelling African states as “shithole” countries at a time when the US Africa Command was extending its operations in Africa in the so-called War on Terror. In order not to be displaced by the USA, the government of France has intensified its activities in Africa, especially now that the Sahel has been involved in a duplicitous war against terrorists even while manipulating groups such as the Tuaregs after the NATO invasion and destruction of Libya.

It is in countries such as Niger and Mali where there is the explicit elaboration of US and French military operations to counter what is deemed to be Chinese influence in Africa. The removal of Mamadou Tandja from the presidency of Niger in 2010 was directly linked to his overtures to China. The emergence of the Brazil, Russia, India, China and South Africa (BRICS) formation has intensified the mischief of France and the European Union, complicating the old rivalries between North America and Europe in Africa. As recent as 2013, the Senate of France outlined a 500-page document to spell out France’s military strategy in the area that was determined to be “Europe’s neighbourhood”, which includes the zone “from the Sahel to Mauritania to the Horn of Africa and other regions in Africa”.

President Sarkozy had been most explicit in the need to topple the Libyan leader Muammar Gaddafi in order to promote the military influence of France in Africa. The destruction of Libya and the psychological warfare against Africans in the form of the war against terror are new aspects of the military management of the international system. It was not by accident that NATO intervened in Libya because that country had committed itself to anchoring an African currency. But as the mythical Wakanda state alerted many, there are umbilical cords that link the youth in Africa to the youth in Brazil, the USA and Europe.

President Sarkozy had been most explicit in the need to topple the Libyan leader Muammar Gaddafi in order to promote the military influence of France in Africa. The destruction of Libya and the psychological warfare against Africans in the form of the war against terror are new aspects of the military management of the international system. It was not by accident that NATO intervened in Libya because that country had committed itself to anchoring an African currency.

African unification, peace and investments in humans

What has been downplayed in the forecasts and projections about international realignments has been the role of militarism and warfare in the re-division of the world. Wars and rumours of war in the Persian Gulf and in the Korean peninsula now dominate the international news. War speeds up the processes of transformation and regression.

In the past, such re-divisions have been violent. From 1885 to the present the militarisation of society, there has been a negative integration of Africa into the international system. The promise of the era of using artificial intelligence for mass surveillance and US drone warfare has now become a reality. Africans will have to be vigilant to ensure that the present warfare in Yemen and Syria, along with the tussles between Saudi Arabia and Iran, does not engulf Africa and Africans.

Forward planning by Western military strategists for a confrontation with China in Africa brings to the fore the preoccupation with peace and reconstruction as one of the central pillars of African unification. For this reason, the African Union has called for the silencing of guns by 2020. It should also have added the demilitarisation of digital technologies.

It was fifty years ago when the late Dr. Martin Luther King Jr. admonished peace activists to rise above robotisation. In the speech “Beyond Vietnam he said, “I’m convinced that if we are to get on the right side of the world revolution, we as a nation must undergo a radical revolution of values. We must rapidly begin the shift from a thing-oriented society to a person-oriented society. When machines and computers, profit motives and property rights are considered more important than people, the giant triplets of racism, militarism and economic exploitation are incapable of being conquered… A nation that continues year after year to spend more money on military defence than on programs of social uplift is approaching spiritual death.”

Ubuntu reparative justice and the escape from spiritual death

Currently the African people are caught in a revolutionary moment, a moment when political institutions and the law are all caught in the tumult. Kenya, Ethiopia and Egypt are examples of societies that exhibit manifestations of this tumult, witnessed by massive social resistance from below, seismic shifts in economic relations, political alliances and military relations and transitional power swings.

Old formulas for political legitimation no longer suborn the mass of sufferers. Instead the people are seeking to unearth a radical Pan-African vision of the future, and that is a vision of a shared humanity where all the citizens of the planet are able to live in peace. This vision is grounded in the moral ethic of sharing and social collectivism that is enshrined in the philosophy of Ubuntu.

This philosophy is one of the antidotes to spiritual death. It is the revolutionary philosophy that celebrates reparations, forgiveness, love and reconciliation. The Caribbean Pan-Africanists are reminding the youth in Africa that there can be no struggle for Pan-African freedom without reparative justice.

Currently, the policy makers at the African Union are designating those in the Global African Family (called diaspora) outside of the continent as constituting a sixth region. However, they envisage collaboration in the form of capturing billions of dollars in remittances. Yet African leaders are silent when African-American youth, such as Trayvon Martin, are shot to death, but these leaders will travel to Paris to march with French leaders when a few French citizens die in extremist attacks.

The Caribbean Reparations Commission, as a frontline Pan-African formation, is calling on African youth to understand the demands of reparations so that there is an end to the constant babble on sustainable development goals (SDGs). Imperial institutions fear the Agenda 2063, so every week there are meetings so that African policy makers are focused on 2030 instead of working to realise the long-term goals of Pan-African collaboration.

As far back as the period of the struggles for independence, the peoples of Africa called on Africa to speak with one voice. In the book Africa Must Unite, Nkrumah wrote: “A United States of Africa must strengthen our influence on the international scene, as all Africa will speak with one voice…We must stand firmly together against the imperialist forces…We need the strength of our combined numbers and resources to protect ourselves from the very positive dangers of returning colonialism in disguised forms.” Nkrumah saw that even in the moment of independence, freedom could not be guaranteed unless the African people were united.

As they remind themselves about the struggles against robotisation in the 21st century, Pan- Africanists are also conscious of the reality that the goal of decolonisation is not complete. There are still the outstanding issues of Western Sahara, Diego Garcia, sections of the Comoros, the islands of Puerto Rico, Martinique, Guadeloupe as well as the other colonial outposts in the Caribbean. The discussions on Pan-Africanism and liberation are seeking to bring back that energy and spirit in a moment of crisis so that the technological revolution and the solar revolution can be harnessed for the well-being of the majority and a changed world economy instead of for the profitability of companies such as Space X, Facebook, Google and Amazon.

The revitalisation of Africans at home and abroad

The revitalisation of Pan-African confidence has been underlined by four interconnected processes:

  1. The military defeat of the apartheid army at Cuito Cuanavale in 1988
  2. The release of Nelson Mandela, unbanning of the liberation movements and the independence of Namibia.
  3. The holding of the World Conference against Racism in Durban in 2001 and the declaration that slavery constituted a crime against humanity.
  4. The formation of the African Union and the elaboration of the plans for Agenda 2063.

The major limitation of this revitalisation process is the fact that those intellectuals schooled in Eurocentric ideas are still at the helm of political power. Youth rose up in Egypt and Tunisia to make a break with their repressive leaders, but imperialism supported the militarists while those who constituted the majority at the African Union refused to pay their dues and proposed Western neoliberal views of development in the so called New Partnership for Africa’s Development (NEPAD).

Global warming, the drying up of Lake Chad, Ebola and Western cyber control over Africa dictate that our youth must think beyond petty differences based on nationality, ethnicity, religion, race or sexual orientation. Aspiring politicians exploit the insecurities generated by structural adjustment to create the scare of millions of illegal immigrants moving across borders. Even while making declarations at the African Union and energetically supporting NEPAD, politicians in many parts of Africa (especially South Africa) whip up xenophobia and hinder the free movement of persons by creating restrictive immigration policies and immigration procedures that violate the basic human rights of those Africans who believe that Africa is for the Africans. Thus, even at the moment when the Continental Free Trade Area treaty was signed in March 2018 to create the world’s largest single market, the leadership continue to ship their money to foreign bank accounts and hinder the creation of a common currency in Africa. This is why the talk about Pan-African economic relations lags behind the reality that forty years ago there was a common currency in East Africa.

We need to clarify the differences between the project of unity as inscribed within the present political leadership and the thoroughgoing push for freedom from those who crave a new vision of citizenship. We will agree with Nkrumah that Africa needs a new kind of citizen. Our task is to draw from the positive memories while outlining the challenges in the present period.

This author has identified key areas of transformation with a focus on the democratisation of access to water resources and the re-engineering of the African landscape to unify the African people. It is a transformation where the working people “who have eyes and ears” will choose to look back in order to look forward. Looking back draws on the memories of transformative moments of African liberation and draws inspiration from these moments. The moment of Haiti’s independence as well as the rapid decolonisation period between 1956 and 1965 were two such moments when the explosive spread of the culture of independence temporarily silenced those who wanted to colonise Africa for another one hundred years. Kwame Nkrumah was the leader of Ghana at that transformative moment. We need to clarify the differences between the project of unity as inscribed within the present political leadership and the thoroughgoing push for freedom from those who crave a new vision of citizenship. We will agree with Nkrumah that Africa needs a new kind of citizen. Our task is to draw from the positive memories while outlining the challenges in the present period.

Bob Marley, the cultural leader, was a notable Pan-African spokesperson of 20th century who wanted to transcend racial divisions with a universal message of African unity, love, peace and human emancipation. His call for emancipation from mental slavery remains a message to the youth who are now exposed to the brain-hacking of the digital companies controlled by billionaire Africans and non-Africans alike.

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WHO IS RUTO? The handshakes and the fear it is spreading

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WHO IS RUTO? The handshakes and the fear it is spreading

The now (in) famous March 9, 2018 “handshake” between President Uhuru Kenyatta and the opposition coalition supremo Raila Odinga has ushered in a season of political “handshakes” between presumed antagonists.

After Uhuru, Raila shook hands with former Presidents Daniel Toroitich arap Moi and Mwai Kibaki, on April 12 and April 20, when he went calling on them at their homes in Kabarak, Nakuru County and Muthaiga, Nairobi County respectively.

Weeks later, during his annual State of the Nation address to Parliament, the President in a live-and-let-live gesture asked the House members to “cross-over” and greet each other, supposedly signaling the end of electoral hostilities and the beginning of a political détente and healing through an overplayed public act of penance.

Leading the way, Uhuru shook hands with the youthful Babu Owino, the vociferous MP for Embakasi East, who, during the electioneering period in 2017, is supposed to have epitomized the opposition’s collective hatred of him.

The spin-off effect of this publicized “presidential pardon” was a cacophony of contrite pleas from and between politicians, led by Deputy President William Ruto, who took to Twitter to seek forgiveness from those he may have “sinned” against, even as he forgave those who had “sinned” against him.

However, beneath the feigned efforts of the political class to ingratiate themselves to a discerning but disengaged electorate, the undercurrents of the 2022 presidential succession are raging.

Since that first handshake on the steps of the Harambee House, which took him by complete surprise, Ruto has not been resting easy. Raila’s meetings with Uhuru, and subsequently with Moi and Kibaki, have re-calibrated and re-oriented his political program for the next 4 years.

However, beneath the feigned efforts of the political class to ingratiate themselves to a discerning but disengaged electorate, the undercurrents of the 2022 presidential succession are raging.

Attuned to brinkmanship and sabre rattling, Ruto’s initial attempt to respond may have boomeranged on him. If the stories swirling around are to be believed, he was denied an audience with Moi after arriving unannounced and uninvited at the Kabarak home of the man whose tutelage paved his path to political prominence. He and his entourage that included his close confidante, Charles Keter, the Cabinet Secretary for Energy, were nonetheless served with hot lunch, in the truest African tradition of welcoming even your presumed enemies, when they drop by suddenly.

Moi, through his interlocutors, was magnanimous in acknowledging the visit by the Deputy President of the Republic and assured Ruto that at an appropriate and properly arranged time, he would indeed meet with him. The DP was nevertheless flustered by the apparent public rebuff. In an effort to deflect from the missed opportunity, he blamed his woes on Moi’s son, the Senator of Baringo, Gideon Moi, who he accused of shielding his father from him.

Had the DP imagined himself in this situation so soon after the elections?

“The gloves are off,” said a member of the Mt Kenya Foundation, an influential lobby group that consists of some of the richest Kikuyu barons in Kenya and which helped bankroll Uhuru Kenyatta’s presidential campaigns in 2013, as well as 2017. We were at Sagret Hotel, in Nairobi, drinking bone soup, accompanied with sizzling hot mutura (traditional sausages stuffed with offal). Sagret Hotel, which has existed since the 1960s, has been the haunt for old Kikuyu money, patronized by some of the richest Kikuyu men and who’s who in Kikuyu society.

“Who is Ruto?” asked the mzee, a typical Kikuyu ethnic chauvinist: arrogant, contemptuous, entitled and moneyed. The loaded question presupposed, Ruto was a non-entity in Kenya’s dynastic politics. “Who was his father?” he mused aloud. “Bururi ni wa andu atatu: njamba, gitonga na muthamaki (A country belongs to three types of people: the brave, the rich and the anointed leader). It is true Ruto could be a brave man … Yet, that alone does not qualify him to rule over us. Raila is [also] a njamba, but we Kikuyus did not give him the presidency.”

The tycoon said the country’s influential political families had rejected Ruto. “Who are we to say he can lead us? Ikienda guthejuo, ndionagio kahiu (if you decide to slaughter an animal, you do not make it obvious by dangling a knife in front of it). Ruto should read the sign on the wall”, he said.

That the question of “who is Ruto”, now openly being asked by the Kikuyu elites, was also quickly gaining currency among the Kikuyu rank and file, dawned on me when I bumped into my long-time friend, Njuguna Gatheca, in the city centre recently. A city of Nairobi political operative since the inaugural days of plural politics in the early 1990s, Njuguna pulled me aside and animatedly told me: “giothi ni githaruranie” – the game had changed. “Who is Ruto?” It was a rhetorical question and he was not expecting an answer from me.

A country belongs to three types of people: the brave, the rich and the anointed leader). It is true Ruto could be a brave man … Yet, that alone does not qualify him to rule over us. Raila is [also] a njamba, but we Kikuyus did not give him the presidency.

“This country cannot be left to a person whose political pedigree is questionable,” said Njuguna. “Who knows, there might not even be an election in 2022. You keep abreast with global politics…you know what happened in Russia with Putin when his term was coming to end? Let me whisper something to you: Uhuru is not going anywhere, he must stay around to guard his family’s empire”.

Vladimir Putin was inaugurated on May 7, 2018, for his fourth term as president and has ruled Russia for 18 years, save for a brief period when he served as the Prime Minister in 2008. My friend was telling me that the Kikuyu would not vote for Ruto. He described Ruto as a man who really itched to be president – a familiar label previously attached to Raila in his effort to wrestle the presidency from Kibaki and later Uhuru. Now it had conveniently shifted to Ruto. “We know Ruto’s plan: he wants the presidency so much, so that he can gleefully bring down Kikuyus’ riches. We will not give him the pleasure of doing that,” said Njuguna.

“Ruto should not think we have forgotten, what he did in the North Rift and especially at Burnt Forest church,” said the old man at Sagret Hotel. He was referring to the violence that followed the bungled 2007 presidential election, much of it targeting Kikuyus in the expansive Rift Valley region, for which Ruto was prosecuted at the International Criminal Court. Three dozen of them were killed in a single incident, when a mob set fire to a church they were sheltering in.

I began openly hearing the “Burnt Forest church fire” narrative after the repeat October presidential election. But the fact is, the narrative had all along been there, but more muted after Uhuru and Ruto teamed up in 2012 to run for the presidency. “We are not foolish and we are not forgetful,” said the businessman. “We had to be tactical not to torpedo Uhuru’s presidency – but now we are free, we owe no one any apology or debt.”

He described Ruto as a man who really itched to be president – a familiar label previously attached to Raila in his effort to wrestle the presidency from Kibaki and later Uhuru. Now it had conveniently shifted to Ruto.

The mogul told me that as a Christian, he had forgiven Ruto for what he did to Kikuyus in the North Rift, but that did not mean he was welcome to be the nation’s president. He reminded me of the Hungarian psychiatrist Thomas Szasz’s famous aphorism: “The stupid neither forgive nor forget, the naïve forgive and forget, but the wise forgive, but don’t forget.”

He continued: “If Ruto is not tamed, his plan is to dethrone the dynastic families of Kenyatta, Moi and Jaramogi in that order, from future political participation.” To do that, “he must of necessity first destroy their business empires. For him to survive as a president and consolidate his powers, he must bring down the Kenyatta and Moi families down. That is the only way he will be president.” The mzee saw Ruto’s hand everywhere in the government, and thought it did not portend well for the nation if he became president: “He will finish the country.”

The old man was buoyed by the fact that in Kenya’s chequered political history, “vice presidents traditionally have not succeeded the president save for Moi only. Moi was a special case because President Mzee Jomo Kenyatta died in office, hence allowing for a smooth transition,” He did not find it necessary to mention that the Kikuyu Mafia had opposed Moi’s ascension to power from 1969 (when Kenyatta suffered a stroke) and increasingly from 1974, when it was evident that Kenyatta’s death was imminent because of his frailty. Kenyatta died in 1978.

“Even Kibaki, who was at one time Moi’s Vice President did not succeed him directly: He had to find another route. (Kibaki was dropped as VP following the disastrous mlolongo (queue-voting) elections of 1988 and left Kanu in 1991 to found the Democratic Party). The others, Jaramogi Oginga Odinga, Dr Josephat Karanja, Prof George Saitoti, Musalia Mudavadi, Stephen Kalonzo Musyoka, Moody Awori, fell by the way side.” Kibaki’s first deputy, Michael Kijana Wamalwa, died after just eight months into the job. 36 years before, Joseph Murumbi had also lasted less than a year when he resigned in 1967. “Ruto will not be the first,” opined the businessman.

The old man told me Ruto is both feared and reviled by many Kikuyu MPs and politicians. “They are too afraid to come out and oppose him. All they can muster to say in their safe confines is that ‘Ruto is bad because he is not good’”. In April 2013, the Mt Kenya Foundation members hosted some of Ruto’s bosom buddies at Blue Post Hotel off Thika Superhighway, 40km from Nairobi. “We wanted to find out from them, what exactly was Ruto’s political ambition,” confided the tycoon. He claimed that one of Ruto’s men told them: “Ruto anajua Wakikuyu hawawezi kumchagua…anataka kutengeneza pesa tu.” (Ruto knows Kikuyus cannot vote for him; he just wants to make money). But it was now evident that Ruto wants to be a powerful president like Daniel arap Moi was.

“The handshake had obviously disrupted Ruto’s post-October 26, 2017 election program,” said a Kalenjin friend, who worked closely with Ruto’s campaign team. We were sitting at a popular pub in Langata, south-west of Nairobi city centre. “His program was time specific: on Jubilee Party assuming state power, he would begin by dismantling the NASA coalition, in whichever way he could – separating and scattering the four principals, by the first half of the year. In the second half, he was to clean and revamp his image, by sprucing it up as a development conscious leader.” He said Ruto has had to reorder his priorities after he was taken by the handshake surprise.

“It is now a matter of urgency for Ruto to rebrand as a development conscious leader – far from his rabble rousing and cantankerous image, having spent nearly the whole of his first term in office hurling insults at the Opposition and especially at Raila Odinga,” said the friend. “He is also now vigorously pushing for the “hustler narrative” to repackage himself as this struggling, humble man who is now seeking the presidency against all political odds. If you were keen, you would have noticed the cap Ruto was wearing during the April 23, Kamagut chicken auction was branded ‘Jamaa wa Kuku’. The branding project had to be fast forwarded and will increase its tempo as Ruto combats the notion that he is perpetually in campaign mode.”

The “hustler narrative” is assiduously being propagated by Mutahi G. Ngunyi, the chief architect of “Tyranny of Numbers” myth that in 2013 fanatically excited scores of Jubilee Coalition supporters. In the new narrative that Mutahi is fashioning, Ruto is being cast as the underdog who, after a long and arduous political journey, is ready to be crowned the “peasant president”. In crafting the “Dynasty vs Hustler Nation” message for Ruto, Mutahi is targeting the voluble millennial generation, which constitutes a significant part of the Kenyan electorate. Still, more specifically, Mutahi’s new assignment is largely informed more by the emerging realization that the GEMA (Gikuyu Embu Meru Association) nation may, after all, not vote for William Ruto as a bloc. The question therefore that Mutahi is posing to the millenials is this: “In Ruto’s battle royal with the dynastic families that have controlled the politics of Kenya since 1963, who best captures your political imagination and who in your estimation mirrors your daily struggles?”

“We wanted to find out from them, what exactly was Ruto’s political ambition,” confided the tycoon. He claimed that one of Ruto’s men told them: “Ruto anajua Wakikuyu hawawezi kumchagua…anataka kutengeneza pesa tu.”

The other person who is pushing the “peasant president” agenda is the easily-provoked and provocative city lawyer, Ahmednasir Abdullahi. He has several times, through his Twitter handle, falsified Kenya political history, in his impressionistic efforts to portray Ruto as the first son of a peasant to contend for the country’s top seat.

The Kalenjin millennial who patronize the Langata pub I met my friend in are mostly the children of the Kalenjin elite who thrived during Moi’s 24-year-old reign. They are completely sold on Ruto’s presidential ambitions and his impending take-over in 2022. “Ruto’s a go-getter and that’s the kind of person, we want,” said one to me. “This talk about Ruto’s wanton corruption and enriching himself is just bull talk – who in this country among his accusers can hold a candle against Ruto? We know how the political dynasty families made their riches. You do not help to form a government then be expected not reap from it. If Ruto has a found his way of making money, why begrudge him?”

According to this group, Ruto has proven that he can deliver what he promises: “He delivered Langata constituency to us – for the first time in the history of Nairobi politics, we have a Kalenjin MP – Nixon Korir in Nairobi County. We believe Ruto is the person who will hold our hands after he gets the presidency in 2022, just like Moi held our fathers’ hands, when he became the president in 1978.”

Like Jomo Kenyatta before him and Kibaki and Uhuru after him, Moi rewarded his ethnic base with government jobs. One of the parastatals that came to be identified with Kalenjins was the then Kenya Posts and Telecommunications. “There was a time when Kalenjin dialects were the languages of instruction; nearly everyone from the Managing Director to the tea-girl and the corridor sweeper was a Kalenjin,” said a retired engineer to me.

The Kalenjin population resident in the greater Langata is neither accidental nor coincidental: many of the Kalenjin who came to Nairobi in the 1980s and 1990s from the largely rural Rift Valley, came as government employees. As it were, they were the beneficiaries of the government houses in Langata and elsewhere in the city.

If the Nairobi Kalenjins are of the view that Ruto is the man who will carry their collective aspirations, the rural Kalenjin is even more wedded to the view that Ruto should be the next president. Sila, a friend from Kapseret, in Eldoret, told me the issue is non-negotiable. “Tunataka kura millioni nne kutoka kwa hawa Wakikuyu.” We want four million votes from these Kikuyus. Kapseret is 20km from Eldoret town, near the Edoret International Airport on the Eldoret-Mosoriot Road. Some of the richest Kikuyus in Eldoret live in this general area. They have hotel businesses, hardware shops and restaurants.

The question therefore that Mutahi is posing to the millenials is this: “In Ruto’s battle royal with the dynastic families that have controlled the politics of Kenya since 1963, who best captures your political imagination and who in your estimation mirrors your daily struggles?”

Said Sila, “tunajua Wakikuyu wote pale wanaishi Uasin Gishu County, tutaenda kwa nyumba zao kuwaitisha kura…kuna watu watahama hii counti wakileta kujua.” (We know where all the Kikuyus in Uasin Gishu live. We will move home to home, asking for their vote … there are people who will vacate this county if they try to be too clever). To test Sila’s assertion, I talked to some of the Kikuyu residents from Kapseret and Mosoriot. “Look at these houses, are they made of mud?” one Kikuyu man asked me. “We will vote with the people here. We do not want to court trouble. We have lived in relative peace since 2013. Kikuyus from the central region do not speak on our behalf.”

At West Indies, a middle class suburb, I talked to Grace Gathoni. She emigrated to Eldoret in 1980, from Nairobi, but is originally from Warubaga, in Elburgon. “The new post-election narratives being formed by the political elites within the Jubilee fraternity are being closely watched by Kikuyu resident in Uasin Gishu County and elsewhere in the Rift Valley region,” said Gathoni. “I will tell you this: the Kikuyus in Rift Valley will vote for Ruto. It is not a question of whether we like him or not – we don’t. It will be a question of peace and survival.”

“There are some brutal facts to be faced,” said Gathoni. She blames Ruto for the brutality Kikuyus suffered in Uasin Gishu. “But he also teamed up with Uhuru Kenyatta and did what they did to form the government. Uhuru in 2013 and 2017 could not have formed the government without Ruto’s help. If you cohabited with an ogre, you don’t one day wake up and just walk away from it, it will certainly devour you. You must cleverly device a system to disengage yourself from it.” Gathoni told me that surprisingly, despite the 2008 violence, more Kikuyus had moved to Uasin Gishu, especially after 2013. “Today, many are engaged more in business and less in farming. And unlike pre-2007 and post-election violence, majority of them live in urban centres – Eldoret, Kitale, Moi’s Bridge, Matunda, Turbo. Those in farming nowadays just lease the land. They also became the wiser: not many of them live with their nuclear families. The men returned, but their families are in Juja, Kajiado, Kitengela, Ngong and Rongai.”

The outbreak of handshakes in Nairobi has startled Kikuyus in the Rift Valley where they thought they were safest. Meeting some wazees from Ng’ombe Imwe in Bahati constituency, Nakuru County, the Presbyterian Church of East Africa (PCEA) elders told me word was already quietly being subtly spread around that “it is paramount that Kikuyus wherever they are in the Rift Valley seek to live peacefully like they have been doing for the last couple of years.” Ng’ombe Imwe is one kilometre from Tabuga, where the Deputy President was hosted by the PCEA Church for a Sunday service on April 23. Listening to these wazees and Gathoni, it sounded to me like peace had been commodified in the greater Rift Valley region.

Another mzee, from Elburgon, told me how some Kalenjin men pointedly told him: “It is true the Kalenjins terrorized the Kikuyus in the North Rift during the post-election violence in 2007, but I hope you people, as we approach 2022, will appreciate the cost of peace. You’ve lived well with us for the last five years. It is important we continue living peacefully.” It was a chilling warning. “People have built permanent houses here,” he said. “They have crops in the farms and animals in the fields; the last thing they want is disruption, death and destruction. I will tell you this: Kikuyus from this area and the adjoining areas of Kuresoi, Molo, Mauche, Njoro and Solai will vote for Ruto, come 2022.”

It was Heinrich Himmler, one of Nazi’s most influential and powerful cadre who best captured the power of political terror: Said Himmler, “the best political weapon is terror. Cruelty commands respect. Men may hate us. But we do not ask of their love, only for their fear.” Talking to the 70-year-old from Elburgon, I could see terror in his eyes. The horror of the 2007 post-election violence in his area and the fear that filled his family and relatives, all were coming back to him. “I’m old now, I want to live the rest of my life here on earth in peace and watch the growth of my grandchildren,” he says.

“I will tell you this: the Kikuyus in Rift Valley will vote for Ruto. It is not a question of whether we like him or not – we don’t. It will be a question of peace and survival.”

The post-handshake fear and panic has also spread to the top echelons of Ruto’s squad. An Independent Electoral and Boundaries Commission official stationed in Kitale whispered to me that the triple resignations in April of IEBC commissioners, Paul Kurgat, Margaret Mwachanya and Connie Maina, were a choreographed event allegedly orchestrated by Ruto himself. “This was done with the intention of ostensibly disabling he IEBC and buying time, in case the push for a referendum catches momentum,” said the official.

Ruto’s middle name is Kipchirchir. Chirchir in Kalenjin etymology, means “too quick”. When in a seemingly political crisis, Ruto supposedly does too many thing too quickly. When in the storm of the International Criminal Court in November 2010, he took the bold and risky step of travelling to The Hague in the Netherlands and spent 30 hours at the Court. He met everyone except the ICC’s then Chief Prosecutor Louis Moreno Ocampo. His mission flopped. When he came back, he took up a verbal war with everyone, blaming his woes on everybody but himself.

My Kalenjin friends like reminding me that the traditional symbol of Kalenjin leadership – the Sambut – a traditional cloak, has always remained with Moi and therefore never been transferred to anyone. In 2007, months before the controversial general election, in what came to be known as the Eldama Ravine Declaration, Ruto was enthroned as the Kalenjin leader, “but that was not the true enthronement,” say the friends. “Until and unless he hands over the Sambut, Moi will remain the true Kalenjin leader. When the apparently impulsive decision to fly to Kabarak for a photo-op backfired, Ruto again blamed everyone and everything save himself.

If he stays true to form, there may be tough times ahead for Kenya, regardless of all the handshakes.

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