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“We Have Failed Kenyans”: Lamentations for a Broken Nation

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When a seasoned Senator tells young people not to look to the National Assembly, the Executive or the Judiciary for answers to the spiraling debt, the closure of businesses, the extra-judicial killings of young people and the run-away unemployment, where else should they look?

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“We Have Failed Kenyan’s”: Lamentations for a Broken Nation
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I rarely follow the theatrics of Gatundu Member of Parliament Moses Kuria. But I was struck by his recent remarks – widely circulated in the press – that “as Parliament we have failed. Mea culpa. As a member of parliament and a member of the budget committee, we have failed Kenyans . . . We have told Kenyans this romantic story that all is well . . . I want to say that we have lied to Kenyans, first of all. And the second thing is that we have failed in our oversight responsibility . . . .”

One might have dismissed Moses Kuria as that maverick known for saying ridiculous things. But then, shortly after this, there was another admission of failure from another member of the National Assembly. This time it was Senator James Orengo in response to a challenge from the youth attending an event celebrating Prof. Yash Pal Ghai. Mr. Happy Olal of the Dandora Social Justice Centre had put Senator Orengo on the spot for handing the Executive a blank check and failing to play their oversight role on the debt ceiling, unemployment, extra-judicial killings of the youth, and all the many other ills plaguing Kenyans.

“I wanted to appeal here that sometimes we look for solutions where there are no solutions. Like when you are talking about parliament and looking for a solution in parliament. I think you are absolutely mistaken. . . .”, said Senator Orengo.

I can hardly recall a time in our political history when political stalwarts such as Senator Orengo openly admitted to us that they had failed in their legislative and oversight responsibilities. This is the country that produced firebrands like George Anyona, Chelagat Mutai, Martin Shikuku, Jean-Marie Seroney, and JM Kariuki during the repressive regime of Jomo Kenyatta. And in the infamous Nyayo era, Orengo was one of the “Seven Bearded Sisters” (along with Abuya Abuya, Chelagat Mutai, Onyango Midika, Mwashengu wa Mwachofi, Lawrence Sifuna, Chibule wa Tsuma, and Koigi wa Wamwere), who gave Daniel Arap Moi’s regime sleepless nghts.

It is the members of this very same National Assembly that had defied single party autocracy and made the regime quiver with rage whenever they spoke, while the public cheered them on knowing that they were the “people’s watchman”. They braved detention without trial, police harassment and economic sabotage to play their oversight role. And yet here was one of the “Bearded Sisters” now telling young people to look elsewhere for leadership – not to him or to the National Assembly, extinguishing any little glimmer of hope among the youth that those who had fought for the political and socio-economic rights of the people would provide leadership in the struggle for social justice.

This blow might have been less painful had the country not been witnessing sustained assaults on another arm of government – the Judiciary. On 4 November, in a widely televised statement, Chief Justice David Maraga lamented efforts to undermine the judiciary, including through budget cuts. In an unprecedented hour-long speech, the Chief Justice described the ways in which powerful Cabinet Secretaries and Permanent Secretaries were trying to control the Judiciary.

Kumbe hii nchi iko na wenyewe” (so this country has its owners) . . . People are trying to cripple the Judiciary . . . They want to control the Judiciary. They want to make the Judiciary a puppet”, said the Chief Justice.

Those were profound words coming from the man who made history by nullifying the results of the election of the incumbent president, triggering a return to the ballot. For those who know the Chief Justice well, it took a lot of courage to speak up and defend the judiciary. What was not lost in his long-winded speech was that he was fed up of trying to appease the Executive and yet having his judges attacked and the Judiciary financially crippled.

And yet here was one of the “Bearded Sisters” now telling young people to look elsewhere for leadership – not to him or to the National Assembly

Nothing infuriates a descendant of Mogusii more than open disrespect and it was clear that he was incensed when the Chief Justice deviated from his prepared speech to denounce the abuse endured by his office. His conclusion that he would not go to anybody to beg for money for the judiciary evoked a Kisii saying which, loosely translated, means, “I don’t eat at yours”. It was a statement of defiance. It is no wonder that the budget cuts were reversed a few days later.

But the onslaught on the judiciary is unrelenting. There are moves to remove both the Chief Justice and his Deputy from office. The promised “revisiting” is taking various forms ranging from budget cuts to personal attacks against judges. Further constraining the functioning of the Judiciary, the President has refused to gazette newly appointed or promoted judges. This confirms the statement from the Chief Justice that the Executive is seeking to make the judiciary its puppet. With an Executive that is out of touch with the people and a legislature that has been castrated by the Executive, the Judiciary remains our last line of defence. But for how long?

The Executive has openly shown its inability to lead the country. There are endless speeches from the President asking us, “jameni mnataka nifanye nini?” (surely, what do you want me to do?). This has become the standard refrain from the President, whether in response to the rampant corruption or to questions on delivery of basic services. Lucia Ayela, a young woman living in Nairobi, very eloquently expressed the frustration of many In video clips that have since gone viral.

“Sir, do you even live in this country? . . . are you even aware of what is going on in your government . . . you do not relate to your subjects [sic] at all”, Ms. Ayela lamented.

Ms. Ayela joins a number of Kenyans who have been responding to the President’s questions to his cabinet about why the country is broke. In an interesting twist, these questions seem to be emerging even from media houses reportedly owned by the Kenyatta family. In her strongly worded Punchline in October, Ms. Ann Kiguta castigated the President for being uninspiring and claiming to be tired of his job. She reminded him that he had asked for the job (three times) and he needed to roll up his sleeves and perform it as energetically as when he was going around the country seeking the presidency. This was followed by an even more hard-hitting piece by Ms. Yvonne Okwara-Matole on Citizen TV. The courage we are seeing from the men and women who are directly calling the Executive to order should not be taken for granted. As we know all too well, in our country, such courage can cost careers and, sometimes, lives.

With an Executive that is out of touch with the people and a legislature that has been castrated by the Executive, the Judiciary remains our last line of defence

Observing how the Executive, the National Assembly, county governments and the Judiciary have been operating over the past two years, it is evident that they have, for various reasons, failed to live up to the spirit and the letter of the Constitution. Chapter one of the Constitution bestows “all sovereign power” on the people of Kenya. The organs of State have power vested in them only so that they may act on behalf of the people. In the event that all these organs fail the people, what recourse do we have?

When a seasoned Senator tells young people not to look to the National Assembly, the Executive or the Judiciary for answers to the spiraling debt, the closure of businesses, the extra-judicial killings of young people and the run-away unemployment, where else should they look? When the organs delegated to exercise the will of the people, prove their inability to carry out their mandate, what recourse do the people have? Well, one could think of three possible options for bringing about political change before the 2022 General Election.

First, and as the Katiba Institute has been educating us, we have the option of firing our members of parliament. The Constitution (Article 104) and the Elections Act 2011, provide for a procedure for recalling Members of the National Assembly. There has been no successful bid so far, although there are reports of a petition filed against the Member of Parliament for Molo, Francis Kuria Kimani. In any case, if discontent is with the entire legislature, there seems to be no easy path towards their mass recall.

In the same manner, although article 145 of the Constitution provides for the impeachment of a president, it requires at least a “third of all members” moving a motion for the impeachment, “supported by at least two-thirds of all the members of the National Assembly.” As the ongoing impeachment process of the President of the United States has demonstrated, loyalty to the party tramps fidelity to the Constitution. With our National Assembly completely in the control of the Executive, impeachment is not a word you will be hearing in the corridors of parliament any time soon.

Second, the Executive and the National Assembly, having recognised that they have failed to fulfill their social contract with the voters, could resign. Prime Minister Hailemariam Desalegn of Ethiopia set a precedent in the region when he resigned in February after coming to terms with his inability to govern following violent crackdowns on protesters and a spiraling economy. However, there are no signs at all that this is an option that the Kenyan government is even taking under its considering.

Rather than seeking to renegotiate the broken social contract, the President is aggressively pushing for a change to the Constitution in what some have called a Ka-Putin attempt to return to power in an as yet to be created position of prime minister, at the end of his current term. Some political leaders, including Hon. Martha Karua, have warned the President not to attempt any such manoeuvre. The next few weeks will be critical in evaluating how far he intends to go in his bid to remain in power.

It would seem that the President is deaf to the cries of voters bewailing unemployment, increasing debt, business closures, lack of affordable health care and education, among a myriad grievances. The Building Bridges Initiative (BBI) that he has crafted together with his elder brother Rt. Hon. Raila Odinga, is mere horse trading between elites, an initiative meant to help an illegitimate President to govern, and an opposition leader who has betrayed millions of his supporters by turning his back on electoral justice, to save face

Third and last, the people – who hold sovereign power – could organise themselves to usher in political change. As David Ndii argues, this change could either be through internal realignment as was the case in Ethiopia or through popular mobilisation leading to the toppling of the regime Sudan-style. Whichever mode of change the people choose to use to exercise their sovereign power, it is clear that, like in Sudan and Ethiopia, the young people will have a critical role to play.

The Building Bridges Initiative that Uhuru has crafted together with his elder brother Odinga, is mere horse-trading between elites, an initiative meant to help an illegitimate President to govern, and an opposition leader who has betrayed millions of his supporters, to save face

There are already young people like Happy Olal of the Dandora Social Justice Center, who are showing the power of community organising. Phenomenal women like Jerotich Seii and the Energy 6 (E6) in the #SwitchoffKPLC campaign who are leading the charge. Small-scale traders in Mombasa holding “Black Monday” protests to raise their concerns on the effect of the Standard Railway Gauge (SGR) on their businesses. Students braving police brutality to demonstrate against insecurity around their campuses, very likely caused by the tough economic conditions facing workers who have been laid off, and graduates without jobs.

The Executive and the Legislature have an opportunity to listen to these diverse voices calling for change across the country. Rather than impose the BBI report and a referendum on Kenyans, they need to find ways of addressing the grievances from across the country. Signs that a people is demanding to exercise its sovereign power are apparent all over social media and it is clear that Kenya is a time bomb waiting only for a trigger to explode. It is in our power to either choose a peaceful path or to choose a painful and chaotic one. Time is not on our side.

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Ms. Abraham is a governance and institutional development expert.

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What Kenyans Have Always Wanted is to Limit the Powers of the Executive

As Kenya’s political class considers expanding the executive branch of government, no one seems to be talking about restricting its powers.

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What Kenyans Have Always Wanted is to Limit the Powers of the Executive
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The tyranny of numbers, a phrase first applied to Kenyan politics by one of Kenya’s most well-known political commentators, Mutahi Ngunyi, was repeated ad nauseum during the week of waiting that followed Kenya’s 2013 general elections.

In ads published in the run-up to the 2013 elections by the Independent Electoral and Boundaries Commission (IEBC), people were told to vote, go home and accept the results. Encouraged by a state that had since the 2007 post-electoral violence dominated public discourse and means of coercion, the military pitched camp in polling stations. Many streets in Kenya’s cities and towns remained deserted for days after the polls closed.

According to Ngunyi, the winner of the 2013 elections had been known four months earlier, that is, when the electoral commission stopped registering voters.

In a country whose politics feature a dominant discourse that links political party and ethnicity, the outcome of voter registration that year meant that the Uhuru Kenyatta and William Ruto-led coalition, the Jubilee Alliance, would start the electoral contest with 47 per cent of the vote assured. With these statistics, their ticket appeared almost impossible to beat. For ethnic constituencies that did not eventually vote for Uhuru Kenyatta – the Jubilee Alliance presidential candidate in 2013 – a sense of hopelessness was widespread.

For them, a bureaucratic, professionalised, dispassionate (even boring) discourse became the main underpinning of the 2013 elections.

This was not the case in 2017.

Uhuru Kenyatta, pressured by opposition protests and a Supreme Court ruling that challenged his victory and ordered a re-run, met with Raila Odinga – his challenger for the presidency in the 2013 and 2017 elections – and offered a settlement. It became known as the Building Bridges Initiative (BBI).

In his 2020 Jamhuri Day speech, Uhuru reiterated that the purpose of the BBI process is to abolish the winner-takes-all system by expanding the executive branch of government.

As he explained it, the challenge to Kenya’s politics is the politicisation of ethnicity coupled with a lack of the requisite number of political offices within the executive branch that would satisfy all ethnic constituencies – Kenya has 42 enumerated ethnic groups.

The revised BBI report that was released on 21 October 2020 (the first was published in November 2019) has now retained the position of president, who, if the recommendations are voted for in a referendum, will also get to appoint a prime minister, two deputy prime ministers and a cabinet.

Amid heckles and jeers during the launch of the revised BBI report, Deputy President William Ruto asked whether the establishment of the positions of prime minister and two deputy prime ministers would create the much sought-after inclusivity. In his Jamhuri Day speech, the president conceded that they wouldn’t, but that the BBI-proposed position of Leader of Official Opposition – with a shadow cabinet, technical support and a budget – would mean that the loser of the presidential election would still have a role to play in governance.

One could not help but think that the president’s statement was informed by the fact that Odinga lost to him in both the 2013 and 2017 presidential elections –  this despite Odinga’s considerable political influence over vast areas of the country.

The 2010 constitution’s pure presidential system doesn’t anticipate any formal political role for the loser(s) of a presidential election. Raila held no public office between 2013 and 2017, when he lost to Uhuru. This did not help to address the perception amongst his supporters that they had been excluded from the political process for many years. In fact, Raila’s party had won more gubernatorial posts across the country’s 47 counties than the ruling Jubilee Alliance had during the 2013 elections.

While Raila’s attempts to remain politically relevant in the five years between 2013 and 2017 were largely ignored by Uhuru, the resistance against Uhuru’s victory in 2017 wasn’t.

The anger felt by Raila’s supporters in 2017 following the announcement that Uhuru had won the elections – again – could not be separated from the deeply-entrenched feelings of exclusion and marginalisation that were at the centre of the violence that followed the protracted and disputed elections.

The reading of Kenyan politics that is currently being rendered by the BBI process is that all ethnic constituencies must feel that they (essentially, their co-ethnic leaders) are playing a role in what is an otherwise overly centralised, executive-bureaucratic state. This is despite the fact that previous attempts to limit the powers of the executive branch by spreading them across other levels of government have often invited a backlash from the political class.

Kenya’s independence constitution had provided for a Westminster-style, parliamentary system of government, and took power and significant functions of government away from the centralised government in Nairobi, placing significant responsibility (over land, security and education, for instance) in the hands of eight regional governments of equal status known in Swahili as majimbo. The majimbo system was abolished and, between 1964 to 1992, the government was headed by an executive president and the constitution amended over twenty times – largely empowering the executive branch at the expense of parliament and the judiciary. The powers of the president were exercised for the benefit of the president’s cronies and co-ethnics.

By 2010 there was not a meaningful decentralised system of government. The executive, and the presidency at its head, continued to survive attempts at limiting their powers. This has continued since 2010.

As Kenya’s political class considers expanding the executive branch of government, no one seems to be talking about restricting its powers.

Beyond the minimum of 35 per cent of national revenue that the BBI report proposes should be allocated to county governments, it is less clear whether the country’s leaders are prepared to decentralise significant powers and resources away from the executive, and away from Nairobi.

Perhaps the real solution to the challenges of governance the BBI process purports to address is to follow the prescriptions of the defunct Yash Pal Ghai team – it went around the country collecting views for constitutional change in 2003-2004.

According to a paper written by Ghai himself, the Ghai-led Constitution of Kenya Review Commission (CKRC) had no doubt that, consistent with the goals of the review and the people’s views, there had to be a transfer of very substantial powers and functions of government to local levels.

The CKRC noted – much like Uhuru Kenyatta and Raila Odinga now have – that the centralised presidential system tends to ethnicise politics, which threatens national unity.

Kenyans told the CKRC that decisions were made at places far away from them; that their problems arose from government policies over which they had no control; that they wanted greater control over their own destiny and to be free to determine their lifestyle choices and their affairs; and not to be told that they are not patriotic enough!

Yes, the BBI report has proposed that 5 per cent of county revenue be allocated to Members of County Assemblies for a newly-created Ward Development Fund, and that businesses set up by young Kenyans be exempted from taxation for the first seven years of operation. However, this doesn’t amount to any meaningful surrender of power and resources by the executive.

In emphasising the importance of exercising control at the local level, Kenyans told the CKRC that they wanted more communal forms of organisation and a replacement of the infamous Administration Police with a form of community policing. They considered that more powers and resources at the local level would give them greater influence over their parliamentary and local representatives, including greater control over jobs, land and land-based resources.  In short, Kenyans have always yearned for a dispersion of power away from the presidency, and away from the executive and Nairobi. They have asked for the placing of responsibility for public affairs in the hands of additional and more localised levels of government.

This is what would perhaps create the much sought-after inclusivity.

But as the BBI debate rages on, the attention of the political class is now on the proposed new positions within the executive branch. And as the debate becomes inexorably linked to the 2022 Kenyatta-succession race, questions centring on political positions will likely become personalised, especially after the political class cobbles together coalitions to contest the 2022 general elections.

Meanwhile, ordinary Kenyans will be left battling the aftermath of a pandemic, and having to deal with the usual stresses brought on by a political class seeking their votes for another round of five years of exclusion.

The more things change, the more they remain the same.

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Democracy for Some, Mere Management for Others

The coming election in Uganda is significant because if there is to be managed change, it will never find a more opportune moment.

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Democracy for Some, Mere Management for Others
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Western powers slowly tied a noose round their own necks by first installing Uganda’s National Resistance Movement regime, and then supporting it uncritically as it embarked on its adventures in militarism, plunder and human rights violations inside and outside Uganda’s borders.

They are now faced with a common boss problem: what to do with an employee of very long standing (possibly even inherited from a predecessor) who may now know more about his department than the new bosses, and who now carries so many of the company’s secrets that summary dismissal would be a risky undertaking?

The elections taking place in Uganda this week have brought that dilemma into sharp relief.

An initial response would be to simply allow this sometimes rude employee to carry on. The problem is time. In both directions. The employee is very old, and those he seeks to manage are very young, and also very poor and very aspirational because of being very young. And also therefore very angry.

Having a president who looks and speaks like them, and whose own personal life journey symbolises their own ambitions, would go a very long way to placating them. This, if for no other reason, is why the West must seriously consider finding a way to induce the good and faithful servant to give way. Nobody lives forever. And so replacement is inevitable one way or another.

But this is clearly not a unified position. The United Kingdom, whose intelligence services were at the forefront of installing the National Resistance Movement/Army (NRM/A) in power nearly forty years ago, remains quietly determined to stand by President Yoweri Museveni’s side.

On the other hand, opinion in America’s corridors of power seems divided. With standing operations in Somalia, and a history of western-friendly interventions in Rwanda, the Democratic Republic of Congo, South Sudan, and even Kenya, the Ugandan military is perceived as a huge (and cut-price) asset to the West’s regional security concerns.

The DRC, in particular, with its increasing significance as the source of much of the raw materials that will form the basis of the coming electric engine revolution, has been held firmly in the orbit of Western corporations through the exertions of the regime oligarchs controlling Uganda’s security establishment. To this, one may add the growing global agribusiness revolution in which the fertile lands of the Great Lakes Region are targeted for clearing and exploitation, and for which the regime offers facilitation.

Such human resource is hard to replace and therefore not casually disposed of.

These critical resource questions are backstopped by unjust politics themselves held in place by military means. The entire project therefore hinges ultimately on who has the means to physically enforce their exploitation. In our case, those military means have been personalised to one individual and a small circle of co-conspirators, often related by blood and ethnicity.

However, time presses. Apart from the ageing autocrat at the centre, there is also a time bomb in the form of an impoverished and anxious population of unskilled, under-employed (if at all) and propertyless young people. Change beckons for all sides, whether planned for or not.

This is why this coming election is significant. If there is to be managed change, it will never find a more opportune moment. Even if President Museveni is once again declared winner, there will still remain enough political momentum and pressure that could be harnessed by his one-time Western friends to cause him to look for the exit. It boils down to whether the American security establishment could be made to believe that the things that made President Museveni valuable to them, are transferable elsewhere into the Uganda security establishment. In short, that his sub-imperial footprint can be divorced from his person and entrusted, if not to someone like candidate Robert Kyagulanyi, then at least to security types already embedded within the state structure working under a new, youthful president.

Three possible outcomes then: Kyagulanyi carrying the vote and being declared the winner; Kyagulanyi carrying the vote but President Museveni being declared the winner; or failure to have a winner declared. In all cases, there will be trouble. In the first, a Trump-like resistance from the incumbent. In the second and the third, the usual mass disturbances that have followed each announcement of the winner of the presidential election since the 1990s.

Once the Ugandan political crisis — a story going back to the 1960s — is reduced to a security or “law and order” problem, the West usually sides with whichever force can quickest restore the order they (not we) need.

And this is how the NRM tail seeks to still wag the Western dog: the run-up to voting day has been characterised by heavy emphasis on the risk of alleged “hooligans” out to cause mayhem (“burning down the city” being a popular bogeyman). The NRM’s post-election challenge will be to quickly strip the crisis of all political considerations and make it a discussion about security.

But it would be strategically very risky to try to get Uganda’s current young electorate — and the even younger citizens in general — to accept that whatever social and economic conditions they have lived through in the last few decades (which for most means all of their lives given how young they are) are going to remain in place for even just the next five years. They will not buy into the promises they have seen broken in the past. Their numbers, their living conditions, their economic prospects and their very youth would then point to a situation of permanent unrest.

However, it can be safely assumed that the NRM regime will, to paraphrase US President Donald Trump, not accept any election result that does not declare it the winner.

Leave things as they are and deal with the inevitable degeneration of politics beyond its current state, or enforce a switch now under the cover of an election, or attempt to enforce a switch in the aftermath of the election by harnessing the inevitable discontent.

Those are the boss’ options.

In the meantime, there is food to be grown and work to be done.

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Uganda Elections 2021: The Elephant Website Blocked Ahead of Poll

For about a month now, some of our readers within Uganda have been reporting problems accessing the website. Following receipt of these reports, we launched investigations which have established that The Elephant has been blocked by some, though not all, internet service providers in the country.

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Uganda Elections 2021: The Elephant Website Blocked Ahead of Poll
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Dear Readers/Viewers,

For four years now, The Elephant has been one of the premier online sources of news analysis in the East African region with a fast-growing readership across the African continent and beyond.

For about a month now, some of our readers within Uganda have been reporting problems accessing the website. Following receipt of these reports, we launched investigations which have established that The Elephant has been blocked by some, though not all, internet service providers in the country.

We have further ascertained that the directive to do so came from the Uganda Communication Commission (UCC) and was implemented beginning 12 December 2020, when we noticed a sudden traffic drop coming from several providers in Uganda, including Africell and Airtel. A forensics report, which provides technical details on the blocking, is available here.

We have written to the UCC requesting a reason for the blocking but are yet to receive a response.

The Elephant wholeheartedly condemns this assault on free speech and on freedom of the press and calls on the Ugandan government to respect the rights of Ugandans to access information.

We would like to assure all our readers that we are doing everything in our power to get the restrictions removed and hope normal access can be restored expeditiously.

As we do this, to circumvent the block, a Bifrost mirror has been deployed. Readers in Uganda can once again access The Elephant on this link.

Thank you.

Best Regards

John Githongo
Publisher

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