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Kenya: Smoke and Mirrors

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The aberrations around delegation, particularly as concerns public justice seem to perpetuate the criminal administration of public resources. In a seeming charade that blurs lines between the roles of the political and the justice systems, the caretaker is programmed to take the fall and make heroes of the real suspects. But although nobody is buying it, nobody is paying for it either, because nobody is making them pay argues L. MUTHONI WANYEKI.

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Kenya: Smoke and Mirrors
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We have come full circle.

Delegation is subject to much academic discussion – particularly amongst liberal institutionalists and as concerns the European Union. Delegation meaning the transfer of core state (Executive) powers either ‘upwards’ to supranational bodies (like the EU), ‘horizontally’ to independent regulatory authorities (covering everything from electricity to elections) or ‘downwards’ to decentralised or devolved governments.

The breadth and depth of the public policy domains now effectively governed through delegation has led, it is argued, to the rise of the ‘regulatory state.’

Why delegation?

Rationally, there is the ever-increasing need for expertise in public policy domains, which typical public service bureaucracies are unable to keep up with and provide – think here, for example, of regulation of information technology. Beyond the rational is the political – the two more cynical reasons given for delegation are that the state (Executive) needs to, first, demonstrate ‘credible commitment’ to resolving a public policy problem and, second, shift blame for the fact that the public problem remains unresolved.

The consequences of delegation?

One small word: Brexit.

Sticking with the EU example, one of the biggest debates concerning delegation upwards has to do with legitimacy and the social contract. When a state (Executive) cedes power upwards, all sorts of principal-agent questions arise. The principal remains in charge of its agent – through any number of control measures. But the agent can also act more or less autonomously, depending on the strength or weakness of those control measures.

EU regulations now cover a huge swathe of public policy domains. With enforcement powers through its courts. EU citizens may indeed have been perfectly content to flit about from place to place, following employment opportunities or the right to pension in the sunny south – where the Euro stretches further. But not every EU citizen was nomadic. Quite a few EU citizens got more and more perplexed by how constrained by EU regulations their own governments’ fiscal and public policy space was. Which perplexity populist and xenophobic political parties were more than happy to turn into the on-going campaign against the EU.

When a state (Executive) cedes power upwards, all sorts of principal-agent questions arise. The principal remains in charge of its agent – through any number of control measures. But the agent can also act more or less autonomously, depending on the strength or weakness of those control measures.

Moving closer to home, one of the biggest debates as concerns delegation horizontally has to do with ‘layering’ – the creation of the new independent regulatory authorities that parallel, and obfuscate how truly ineffectual and politically-compromised the underlying public institutions are.

Nowhere has this been truer than as concerns dealing with the theft of public resources. As though we didn’t have laws, policies and institutions to deal with theft, we saw through the 1990s and into the new Millennium an astounding array of new ‘anti-corruption’ laws, policies and institutions. Most epitomised by delegation from the criminal justice system to the new ‘anti-corruption’ commissions that now (uselessly) litter the continent.

The reasons for this explosion were the same as anywhere – the need for our states (Executives) to, first, demonstrate ‘credible commitments’ to ending the theft of public resources and, second, shift blame from those who’d been doing the stealing – ie. themselves.

The consequences?

A whole lot of energy and time is spent perfecting the laws, expounding on them ad nauseum. A whole lot of energy and time fighting to give the new ‘anti-corruption’ commissions legislative and then constitutional protections. A whole lot of energy and time arguing about whether they should have just investigative or also prosecution powers. Another whole lot of energy and time arguing about the principal-agent control measures – how to appoint to them, how to budget for them and so on and so forth.

Thus we find ourselves where we are today. Where the amounts of public resources stolen from us boggle belief. Where the ways in which they are stolen are crystal clear – no stone has gone unturned when it comes to devising ways to thieve from the public purse. And yet…where precisely who (!!!) has stolen from us remains muddied and vague – trotting out people before the courts who were evidently proxies – or only nominally in charge of how public monies moved within the system – simply doesn’t cut it. Where jail terms remain a rarity. Where the seizure and return of our(!!!) assets and money simply never happens.

A whole lot of energy and time is spent perfecting the laws, expounding on them ad nauseum. A whole lot of energy and time fighting to give the new ‘anti-corruption’ commissions legislative and then constitutional protections. A whole lot of energy and time arguing about whether they should have just investigative or also prosecution powers.

What happens next?

In the face of rising public anger at the real costs of this theft – to public service delivery, to the cost of living as public plunder is money-laundered back through the housing market and so on – the state (Executive) does an about-turn. The principal declares the agent useless. The principal personally takes charge instead. The principal personally ‘ensures’ that institutions of the criminal justice system swing into action.

We let the irony pass us by. The principal is, in fact, telling us that political compromise of the criminal justice system persists – in what world does the Executive need to personally ‘ensure’ that criminal investigators and public prosecutors do their jobs?

Thus we find ourselves where we are today. Where the amounts of public resources stolen from us boggle belief. Where the ways in which they are stolen are crystal clear – no stone has gone unturned when it comes to devising ways to thieve from the public purse.

We let even bigger ironies pass us by. That this particular principal comes from a family which presided over the ‘original sin’ – the first massive plunder of public resources (like land). And yet he has the nerve to imagine we’ve forgotten that or that time has served a whitewashing purpose. That that ‘original sin’ has now been compounded by what is effectively the re-monopolisation – within just five years(!!!) – of almost all ‘private’ sector domains that family entered into thanks to public plunder.

It is sickening. Delegation may have run its course as concerns ‘anti-corruption’ here, just as it’s under real threat in the United Kingdom and beyond as concerns the EU. But the public policy problem it was intended to sort out persists – our money’s being stolen. Not a damn thing is being done about it.

It is a game of smoke and mirrors. We are nowhere near angry enough.

L. Muthoni Wanyeki
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L. Muthoni Wanyeki, PhD, is Africa Director with the Open Society Foundations (OSF) network based in London. This column is written in her personal capacity and does not necessarily reflect the views of OSF.

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The Violence in Ethiopia

The imminent and existential danger to Ethiopia is not Abiy Ahmed and an oppressive government. It is violent ethno-nationalism.

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The deadly violence that rocked Ethiopia this summer following the death of artist Hachalu Hundessa has been a subject of much speculation and contention. The facts as we know them are that immediately following the assassination close to 250 people died and thousands were jailed, mostly in the regional state of Oromia and Addis Ababa.

What is contested, and less clear, is the nature of the violence, its perpetrators, and victims. Two prominent narratives have emerged following the crisis to explain what unfolded. One holds that the violence was a brutal government crackdown on Oromo protesters grieving Hundessa’s death. The other describes the events as targeted attacks by armed Oromo youth against ethnic and religious minorities. While both narratives contain elements of truth, ignoring one or the other is either ignorant or intentionally misleading.

recent Africa Is a Country article highlighting the poor coverage by Western media of the situation in Ethiopia, for example, makes no mention of ethnic and religious violence, aside from denouncing media outlets that reported it. Rather, the author’s objective is to “set the record straight” by showing that the underlying cause of violence and instability in Ethiopia is the consequence of a political struggle between an oppressive government and Oromos who have been and continue to be marginalised.

Such a viewpoint is erroneous and polarising in the current political climate. To advance a narrow agenda, it glosses over human rights violations and the brutal killing of innocent bystanders by non-state actors.

To provide more context, the agenda I speak of is tied to the Oromo struggle for greater autonomy and recognition. That struggle, which paved the way for Abiy Ahmed to assume power as the first Oromo Prime Minister two years earlier, now seeks his departure. At the heart of this reversal is the Prime Minister’s consolidation (rather than actual dismantling) of the ruling ethnic-based EPRDF coalition into the Prosperity Party, which has, nonetheless, left intact Ethiopia’s unique system of federalism based on ethnic majoritarianism.

The night of Hachalu Hundessa’s murder, the Ethiopian government quickly shut down the internet, while a social media whirlwind erupted abroad as Oromo activists insinuated that Hundessa was killed because of his support for the Oromo cause.

Leaving that aside, the EPRDF had always been a highly centralized institution in practice, and the mere symbolism of this move, in addition to the Prime Minister’s rhetoric about unity, have left some Oromos feeling betrayed. Furthermore, fractionalisation among Oromo elites, including within the former Oromo Democratic Party (ODP) faction of the EPRDF (now Prosperity Party), which recently ousted key leader and Defense Minister, Lemma Megersa, has divided and weakened the movement.

Within this broad movement, one vocal part led by diaspora-based Oromo elites and recent returnees has galvanised the energy and anger of many Oromo youth behind a perspective of anti-Ethiopiawinet (anti-Ethiopian-ness). The “us versus them” mentality pits Oromo nationalists against an enemy that has been described manifestly and repeatedly by the terms Abyssinian and Neftegna (“rifle bearer”). Though prominent Oromo activists stand behind their use of these terms, those who are familiar with the context know that these labels are loaded with ethnic connotations.

The night of Hachalu Hundessa’s murder, the Ethiopian government quickly shut down the internet, while a social media whirlwind erupted abroad as Oromo activists insinuated that Hundessa was killed because of his support for the Oromo cause. Accusations that “they killed him” were recklessly thrown around and left open for interpretation. Within hours of the assassination, allegedly at the behest of Oromo leaders like Bekele Gerba, targeted attacks against non-Oromos unfolded.

In towns like Shashamene and Dera in the Oromia region, several accounts of killings and looting targeting Amharas and other minorities by Oromo youth have been independently verified, in addition to accounts of police and federal forces injuring and killing civilians. Witnesses describe how perpetrators relied on lists detailing the residences and properties of non-Oromos and circulated flyers warning bystanders to not help those being targeted (or risk reprisal), indicating a significant level of organization.

Minority Rights Group International, accordingly, sounded the alarm, warning that these actions bear the hallmarks of ethnic cleansing. Despite this and concerns from Ethiopians throughout the world, Oromo activists and other prominent human rights groups, such as Amnesty International, have remained largely silent about these attacks while condemning the government’s violent response to Oromo protestors.

Government figures provide an ethnic breakdown of the July causalities with the majority of those killed being Oromos within the Oromia region, followed by Amharas and other smaller ethnic groups.  Yet, rather than disproving, as some claim, that targeted attacks by Oromo mobs occurred, this highlights what scholar Terje Ostebo describes as the complexity and inherent interconnectedness between ethnicity and religion within Ethiopia.

According to Ostebo, “the term Amhara, which is inherently elastic, has over the last few years gradually moved from being a designation for Ethiopianess to gaining a more explicit ethnic connotation. It has, however, always had a distinct religious dimension, representing a Christian.” Hence, in parts of Oromia some Orthodox Oromos were referred to and referred to themselves as Amhara. For example, one Oromo farmer interviewed by local journalists reportedly said, “we thought Hachalu was Oromo” after watching the singer’s televised funeral rites that followed the traditions of the Ethiopian Orthodox Tewahedo church.

The “us versus them” mentality pits Oromo nationalists against an enemy that has been described manifestly and repeatedly by the terms Abyssinian and Neftegna (“rifle bearer”).

According to investigations undertaken by the church, a large number of its parishioners (at least 67 confirmed cases) were among the July causalities—a troubling trend, which also includes a spate of church burnings and attacks on Christians that brought large numbers of Orthodox followers out into the streets in protests last year.

To be clear, the violence that occurred was not only ethnic and religious violence. Growing state violence in Oromia and SNNPR has been and continues to be of great concern. As Oromo activists have made clear, it is necessary to end the abuse of force and ensure accountability for these crimes. Yet, when concerns and demands for accountability for non-state violence are raised, these same advocates deny, ignore or dismiss them as part of a propaganda campaign to discredit the Oromo movement. In effect, this dishonesty, itself, has discredited the movement and lost it support by many Ethiopians—both non-Oromo and Oromo.

The recent political turmoil lays bare that the future of an Ethiopian state is hanging by a delicate thread. The polarization that exists today goes beyond disagreements on institutions and policies to the very question of whether we can continue to co-exist as a multi-ethnic nation. Regional elections in Tigray, slated for this week despite the disapproval of the national House of Federation (HoF), and its aftermath may bring these tensions to a boil, again.

As unrest, violence and grievances continue to mount, it is clear that Ethiopia is far from consolidating its transition to a stable democracy. The government continues to curb freedom of speech, jail political opponents and is responsible for violence against civilians. But, if history teaches us anything, it is this: the imminent and existential danger to Ethiopia is not Abiy Ahmed and an oppressive government. It is violent ethno-nationalism.

This post is from a new partnership between Africa Is a Country and The Elephant. We will be publishing a series of posts from their site once a week.

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Let It Never Be Said That Kenyans Went to War Over Mammary Glands

The Kenyan government’s aggressive response to Oscar Sudi’s comments, and the open defiance of Sudi’s supporters, suggest that we might be on the brink of a civil war. As one Kenyan on Twitter wryly commented, BBI has turned into a “Burning Bridges Initiative”.

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The furore over Kapsaret MP Oscar Sudi’s recent comments regarding the first family has left many Kenyan women baffled, not least because Kenyan men are not known to be great defenders of women or their body parts. It has been alleged – and the media has erroneously reported – that, in alluding to her breasts, Mr Sudi insulted Mama Ngina, the former first lady and mother of the current president, Uhuru Kenyatta.

When I first heard about this on social media, I thought it was yet another typically crude example of Kenyan misogyny. There are countless examples of Kenyan men, particularly politicians, insulting and deriding women. Female politicians and activists are a favourite target. Women who dare to defy patriarchal norms do not find a comfortable home here. In fact, they have to fight tooth and nail to be recognised.

The late President Daniel arap Moi, for instance, once referred to Nobel laureate Wangari Maathai as a woman who had “dudus in her head” when she was protesting the building of a tall office block in Uhuru Park. Recently, Mutahi Ngunyi, a State House operative, referred to Martha Karua, a former Minister of Justice and a presidential candidate in the 2013 election, as “a grandmother with average intelligence and a bloated ego” after she gave a TV interview that challenged the president and Raila Odinga to come clean on the motives behind their rapprochement. (Note: Ngunyi’s use of the word “grandmother” was to suggest that Karua had reached her sell-by date and that she should focus on family matters, not politics. In this case, the insulting of grandmothers was not viewed as hate speech by the authorities.)

Those of us who have cared to listen to the speech that caused so much uproar in the country will agree that Sudi did not insult Mama Ngina’s breasts. He merely stated that Uhuru Kenyatta should not believe that the breasts that he suckled are better than the breasts that Sudi suckled.

What Sudi was simply trying to say (and which got lost in the state’s accusations of “hate speech” and “incitement”) was that all Kenyans are equal and that Uhuru and his family should not believe that they are more important than the rest of Kenyans or that the country belongs to them.

In any other period in our political history, these comments might even be considered heroic – an act of rebellion against hegemonic forces. I would go further to say that Sudi has the right to freedom of expression, which is guaranteed by our constitution, so he can say what he wants as long as his utterances are not inflammatory or based on lies. After all, did the young Jomo not say similar things against the British in London’s famous Hyde Park? Is this not what the Mau Mau were saying to the British colonialists when they took up arms against them? Is this not what was conveyed to President Moi during the “Second Liberation” protests? Did Raila Odinga (who was once the leader of the opposition) not challenge election results several times because he wanted Mwai Kibaki and Uhuru Kenyatta to know that Kenya does not belong to just one tribe or to one political party? Fighting for your rights is guaranteed by the 2010 constitution.

But then you have to remember that it was during Jomo Kenyatta’s time that insulting the first family became a criminal offence. Jomo’s Machiavellian Attorney General Charles Njonjo deemed that even imagining the death of the president was punishable. Are we returning to those days of the imperial presidency?

Before I return to the issue of breasts and their significance in the Kenyan imagination, let us recall how we got to this place.

Faustian pact

You may remember that prior to the 2013 elections, Uhuru Kenyatta made a Faustian pact (some call it a marriage of convenience) with William Ruto – his fellow indictee at the International Criminal Court (ICC). The deal – amplified by the likes of Cambridge Analytica, which manipulated a highly gullible electorate – was that the election should be viewed as “a referendum against the ICC”. Part of the pact was that if the duo won the presidency, Uhuru would rule the country for ten years and then hand over to Ruto for the next ten years. In other words, Jubilee – their coalition party – would rule Kenya for the next two decades.

But maybe promising to honour a deal was not part of that deal. That Faustian pact has been broken. Ruto has now been relegated to the sidelines following another Faustian pact called the Building Bridges Initiative (BBI) that has brought Raila into the Uhuru fold, and which has resulted in an orchestrated assault against Ruto. Some might say that it is Kikuyu privilege and hegemony reasserting itself by coopting dissent. Others says it is a way of healing past wounds and uniting a country fractured by political divisions and disillusionment. Only time will tell which scenario will unfold.

Unfortunately, this pact might lead to more, not less violence. The government’s unreasonably aggressive response to Sudi’s comments, complete with police raids on Sudi’s home, and the open defiance of Sudi’s Kalenjin supporters, who threaten to go to war to defend their leader, suggest that we might be on the brink of a civil war. As one Kenyan on Twitter wryly commented, BBI has turned into a “Burning Bridges Initiative”.

The “handshake” between Uhuru and Raila, instead of easing tensions, has created different forms of polarisation. Ruto’s Kalenjin supporters feel betrayed. Opposition and civil society activists who would have come to Sudi’s defence are now taking sides; those who might have defended his right to free speech are now silent because speaking up might be construed as siding with Ruto. These fractures are most evident on social media.

Let us be very clear on one fact, which somehow gets conveniently brushed under the carpet. The 2013 election was premised on fear. Fear that if the Kalenjin and the Kikuyu do not unite, there will be a constant threat of violence and mass displacement of Kikuyus in the Rift Valley. Fear that historical injustices will resurface as a rallying cry during elections – a scenario that neither the Kikuyu nor the Kalenjin elite want because both have blood on their hands.

Although many analysts insist that the UhuRuto victory was simply a mathematical probability, in that it united two of Kenya’s largest ethnic groups into one formidable voting bloc, thereby outnumbering the opposition, some believe that the alliance between the two politicians was based more on primal instincts that had to do with self-preservation vis-à-vis the ICC, and the general fear in the country that the 2013 election would be as bloody, if not more, than the 2007one, as the issues that turned Kenyatta’s Kikuyu ethnic group against Ruto’s Kalenjin in 2007/8, and vice versa, had still not been resolved.

“Though tribe was the watchword in this [2013] election, their alliance, and their victory, was nationalistic, not tribal,” wrote James Verini, a Foreign Policy contributor based in Nairobi. “Their unspoken but resounding message was this: Yes, we killed. We killed for you, for Kenya. And we’ll kill again. It’s the most seductive platform in politics.”

At that time, anti-corruption crusader John Githongo said that the wounds of the violence in the Rift Valley – the site of most of the ethnic conflicts that have taken place during every election cycle since the first multiparty elections in 1992 – had still not healed, despite the public hand-holding and hugging among the Jubilee Alliance’s leaders. “Those who doubt his [Ruto’s] grip and the extent of his leverage need only consider the fact that despite the alliance of ‘peace’ and ‘reconciliation’ between the Gikuyu and the Kalenjin that now prevails, Rift Valley IDPs are not racing back to farms from which they were evicted in 2008. All of us know, quietly and without too much fuss, that we aren’t even close. It is such inconveniences that interrupt the ‘move on’ narrative for now,” he wrote in African Arguments on 22 May 2013.

Breasts in the Kenyan imagination

The Faustian pact between Uhuru and Ruto, and now between Uhuru and Raila, has lessons for Kenyans. In the classic German legend from which this pact gets its name, Faust is a highly successful but dissatisfied man who makes a pact with the devil, exchanging his soul for unlimited knowledge and worldly pleasures. By selling his soul to the devil, Faust is condemned to “The Eternal Empty”. However, female spirits of the earth intervene on his behalf and forgive him for his foolish mistake. Faust suffers some tragedies because of his folly, but in the end he is granted redemption and his soul ascends to heaven in the presence of God and the Virgin Mother. (One moral of the story: female energy is more powerful than the devil.)

We might be tempted to believe that the attacks on Sudi and his ilk are invoking female power. The fact that so many Kenyans (including elderly Kikuyu women who have threatened to strip in front of Sudi) have come out in defence of Mama Ngina’s breasts might suggest that we have reached a Faustian moment. Or perhaps we have evolved into country that actually cares about women and their dignity.

But let us not fool ourselves. For one thing, Mama Ngina, arguably the richest woman in Kenya, is hardly “Wanjiku”. I do not recall her ever defending the rights of poor Kenyan women, or women in general. Two, we are not invoking female energy here to seek redemption. If Kenyan politicians, including Sudi, really cared about women, the two-thirds gender rule would have been enforced in parliament by now.

What we are doing is weaponising the former first lady’s breasts. And sexualizing them, which is very un-African. As Sylvia Tamale writes in African Sexualities, African women’s sexualities were the antithesis of European mores of sex and beauty. Traditional African women had no problems displaying their breasts because breasts in African culture were not objects of sexual desire or titillation; they had one primary purpose – feeding an infant. So talking about breasts was no different from talking about a nose or a leg. If Sudi had “insulted” Mama Ngina’s ear, would we be so upset? The African breast became the object of forbidden fantasy and fetishisation during colonialism when Christian missionaries began their “civilizing mission” in Africa.

In fact, in certain African societies, nakedness was associated with defiance. The Kenyan mothers of political prisoners who “cursed” the Moi government in the early 1990s by stripping at Uhuru Park – because seeing your mother naked is considered a curse in certain Kenyan communities – were not displaying their sexuality; they were displaying their anger. They were defying Moi. Kenyans with a political conscience saw them as heroines. In fact, these mothers will forever remain as symbols of defiance in the annals of Kenyan history.

Maybe now is the Faustian moment when positive female energy can be invoked, not to redeem those who have made selfish pacts, but to take Kenyans down a more enlightened path.

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A Scorecard on Uhuru’s Presidency

How might one rate a president who has undermined the Constitution, distorted the economy, and failed to address corruption in state institutions?

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Article 129 of the Constitution of Kenya 2010 states: “Executive authority is derived from the people of Kenya and shall be exercised in accordance with this Constitution…in a manner compatible with the principle of service to the people of Kenya, and for their wellbeing and benefit.”

The Executive (the President) must protect the constitution, safeguard our national sovereignty, promote the unity of the nation (including recognising the diversity of the people and communities), and protect human rights. The Executive is bound by national values and principles of governance. Its duties include maintaining good governance, state finance, integrity, transparency, accountability and foreign affairs.

As the CEO of the government, she also has special responsibility for matters assigned to other ministers: a strong economy, peace between communities, foreign affairs and international relations, national security, and international relations. She must also demonstrate respect for the people, and bring honour to the nation, dignity to the office, and promote public confidence in the integrity of the office. Most importantly, she has the responsibility to serve the people, rather than the power to rule them.

The status of the Prime Minister is different. Normally she is the head of the party with the most members in the main legislature. She appoints government ministers from members of the House. At Kenya’s independence, the CEO was designated the Prime Minister (PM). Jomo Kenyatta was PM for a year and then he changed the system to a presidential one, with himself as president – a system that has remained, despite strong support for a parliamentary system at Bomas.

The PM’s support stems partly from the sense that a PM, coming from and accountable to Parliament, is usually far less of a dominant figure, and her power is less centralised in one person, which was one of the objectives of the search for a new constitutional order. Another reversal from a parliamentary to a presidential system – again motivated by individual self-interest – occurred in the closing stages of the Committee of Experts process.

A reason why at Bomas there was strong support for the parliamentary system was precisely to ensure that the government was under greater control and scrutiny of the public. The Prime Minister emerges from the collective will of the people in the elections, and can be removed by the legislature by a vote of no confidence. It is far harder to remove a President.

But a President is not – in theory – some unguided missile. Checks and balances are supposedly more developed in such a system.

So how has our President performed?

The President and the Judiciary

The Judiciary is the third major arm of the State. Our President has little power to make or remove judges. A number of key decisions are made by the Justice Service Commission, an independent body to which the President appoints two lay members. However, the President’s choice has been from those who can take orders from him, not those who can represent the people as the Constitution requires. In defiance of court orders, he has blocked the appointment of many candidates. He has also criticised judges in office, especially in recent years, and often when his own position is challenged (as in elections).

The President and the economy

African governments play a significant role in the nation’s economy. Over the decades, the state has helped to establish a modern economy, increasingly based on the private sector. Governments have established institutions of various kinds to regulate economies at regional and international levels. The Kenyan government has probably retained more of a direct engagement with the economy than many. The state has also affected the economy in financial, monetary and other areas.

A reason why at Bomas there was strong support for the parliamentary system was precisely to ensure that the government was under greater control and scrutiny of the public. The Prime Minister emerges from the collective will of the people in the elections, and can be removed by the legislature by a vote of no confidence. It is far harder to remove a President.

Uhuru Kenyatta is not known for his business skills, nor did he distinguish himself when he was Minister of Finance. Yet he took it upon himself to negotiate deals (largely in secret, as the Chinese prefer) with the Chinese government for skills, equipment, and money. The very costly standard gauge railway (SGR) deal with China is shrouded in secrecy. A court has decided that by-passing the law on public procurement on the excuse of a “government-to-government contract” was illegal. There has been corruption in the purchase of land for the line and stations, little control over the construction of the line, and very little attention given to the position of Mombasa as a county and the country’s major harbour.

The environment and industry

There have been concerns about the environmental impact of many big Chinese infrastructure projects, including high-speed trains and big dams. China is financing a coal-fired power project that is strongly resisted by the local community. Evidence suggests it is not needed in view of Kenya’s renewable energy sources. The SGR has also had a negative impact on Kenya’s wildlife as it passes through the Nairobi National Park despite vigorous opposition from civil society, including litigation. The decisions on the railway’s route were made by the Kenyan government. Local firms have suffered as a result of the government’s preference for Chinese firms for construction and other projects.

The State as entrepreneur

There are around 260 state-owned enterprises (commercial, like the Kenya Ports Authority; infrastructural, like the Rural Electrification Authority; regulatory, like the National Environment Management Authority; social, like the Kenyatta National Hospital, and teaching- and research-based, like universities). The general view of parastatals in Kenya is negative, including because of politicisation of the parastatals and poor corporate governance. Their boards and chief executives are appointed by the politically powerful, including the President himself. Thus, many operational decisions are made by the partisan and the non-expert. The role of the state corporations’ advisory committees is just advisory, with little impact on policy or practice. The structure of financing and financial management is weak – many state corporations are allocated funds through line ministries. They are chronically underfunded.

When the President chooses appointees, the whole basis for parastatals is undermined. Indeed, those appointments are usually illegal. By making appointments on an ethno-political basis, the President breaks another obligation of his office: promotion of respect for the diversity of people and communities. The Constitution requires executive authority to be exercised in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit. It is heartening to now see that many citizens and organisations have raised their objections to presidential appointments on grounds of violation of the letter and spirit of the Constitution. Self-interest lies at the heart of what ought to be public service for the nation.

A genuinely open and competitive process would far more likely produce competent appointees who are respected by the public. But even if the appointees are the best available, the whole process is wrong – it depends far too much on patronage.

Promoting or fighting corruption?

One of the most critical challenges facing the Executive is, unfortunately, corruption. It started with Jomo, followed by Moi and Kibaki, and now has increased beyond imagination. The economy is largely based on partnerships between businesspeople and politicians or public servants.

Various attempts are made through the Constitution to eliminate corruption. Article 73 sets the high standard demanded of public officers, including bringing honour to the nation and dignity to the office. State officers are expected to promote “public confidence in the integrity of the office” and to make decisions that are “not influenced bv nepotism, favouritism, other improper motives or corrupt practices”. Their task is to serve the people, rather than to rule them. But the grip of the Executive on appointments is a major obstacle to dealing with corruption – indeed it is corrupt.

Rarely are business-related acts conducted without significant bribes (to the extent that more foreign businesses, including multinationals, have left Kenya than come in recently). Corruption within state institutions (taxes, customs, contracts, procurements, land appropriations, schools and universities, etc.) has never been so intensive.

When the President chooses appointees, the whole basis for parastatals is undermined. Indeed, those appointments are usually illegal. By making appointments on an ethno-political basis, the President breaks another obligation of his office: promotion of respect for the diversity of people and communities.

The police (which is often praised by Uhuru even when it commits brutal acts against innocent citizens), whose mandate is to serve the people, is perhaps the most corrupt institution we have. Of late the President has shown an apparent concern to fight corruption. But dealing more firmly with people within his administration who are suspected of corruption should have been a policy from the beginning. The Executive cannot maintain that “others” are corrupt.

Corruption may no doubt make some Kenyans rich. But it also makes an infinitely larger number of other Kenyans poor. On a broader basis, the President has shown little sympathy for the poor, whose numbers have increased, not decreased, not least because of the current coronavirus pandemic, which led to massive job losses and produced “corona millionaires” through dodgy procurement practices and corruption.

The President and the Constitution

Uhuru has little regard for the Constitution, though he pays lip service to it. If the law does not suit him, he ignores it. Indeed, it seems that the Executive takes the view that if it wants to do something, it will do it regardless of its constitutionality. And it will only decide, if a court objects, whether it will observe the court’s rulings. Think of the takeover of Nairobi County, the creation of the post of Cabinet Administrative Secretary, the importation of the military into the cabinet, the effort to muscle in on the appointment of the Chief Justice, and the tendency to order supposedly independent officers (like the Director of Public Prosecutions) to do things that it wants done.

With such a scorecard, it is hard to make a convincing case for Uhuru Kenyatta’s government.

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