“Public participation calls for the appreciation by State, Government and all stakeholders implicated in this appeal that the Kenyan citizenry is adult enough to understand what its rights are under Article 34 [of the Constitution]. In the cases of establishment, licensing, promotion and protection of media freedom, public participation ensures that private “sweet heart” deals, secret contracting processes, skewed sharing of benefits-generally a contract and investment regime enveloped in non-disclosure, do not happen. Thus, threats to both political stability and sustainable development are nipped in the bud by public participation. Indeed, if they did the word and spirit of the Constitution would be both subverted.” – Communications Commission of Kenya & 5 Others v Royal Media Services Limited & Others  eKLR, para 381.
The role of constitutions and law in social transformation
The role of law in social transformation has a long genealogy when posed as a question about whether law and the courts can advance, stagnate or impede transformation and revolution. This question, once the source of serious and continuous jurisprudential debates, has acquired a consensus that law, indeed, has a role to play in societal transformation and revolution. This multi-disciplinary consensus is shared by lawyers, economists, policymakers, politicians, international organisations, and think tanks.
The debate on the new phenomenon of transformative constitutionalism has been both enriched and transformed by this consensus. The very idea of a transformative constitution (such as those of India, Colombia, South Africa, Ecuador, Venezuela, Bolivia, and Kenya) is the idea that the constitutional superstructure is embedded in a theory that it will be an instrument for the transformation of society rather than a historical, economic and socio-political pact to preserve the status quo as the earlier constitutions did. Constitutions and law have a class content. The superstructure does not merely conform to the economic base passively.
Issues of base and superstructure need creative and undogmatic re-analyses given the changing contexts and circumstance of the world. It should be argued that the dialectical relationship between the base and superstructure will need creativity, innovation, lack of dogma in the varying economic, political, social, ideological, cultural, and intellectual contexts without losing sight of the original revolutionary messages and expected revolutionary outcomes. This approach takes into account the limitations of transformative constitutions and constitutionalism as a basis for understanding revolutionary constitutions of the past, such as the Bolshevik, Chinese, Cuban, and Vietnamese ones. Meanwhile, transformative constitutions are about mitigating the status quo that societies find unsustainable and unacceptable.
While still on the issue of relations between base and superstructure, the constitution and law are part of the superstructure as is politics. The base determines the long movement of history. Most African states were governed by laws that did not recognise Africans as citizens. In my view, these vital aspects of the superstructure are significant forces in the short to immediate term. I would add, however, that they play either a progressive or a retrogressive role depending on the way they are used to fight the base (in our day and age, imperialism) or reinforce it. Whether these aspects play a progressive role, whether they have transformative potential depends on who uses them and how. And this depends mainly on the quality of political leadership and authentic opposition in all countries.
Judicial leadership is integrated in such leadership. I believe progressive forces in the Judiciary can use the constitution and law in moving society towards fundamental transformation. They will do that by developing progressive jurisprudence out of the constitution and the law, accepting that judicial officers do politics, and that their institution, the judiciary, is an institutional political actor.
We, the people of Kenya
Modern transformative constitutions – under which the Kenyan one falls – address two fundamentally critical pillars that anchor societal development: the equitable distribution and use of political power and land and natural resources of the country. The two pillars are the basis of survival, promise of democracy, equity, and prosperity in a nation. They impact the struggles for freedom, emancipation, struggles against exploitation, domination and oppression. These struggles are internal as well as external. It is these struggles that capture, going forward, a new nation, and a new planet that is peaceful, non-militaristic, free, just, equitable, ecologically safe, prosperous, and in my books, socialist. It is only the people the world over who can make this vision a reality. The 2010 Constitution puts Kenyans in this trajectory of struggle. It seeks to mitigate the status quo that is unacceptable and unsustainable while becoming a basis for further struggles towards freedom and emancipation.
The constitution-making process that birthed the 2010 Constitution was people-driven. The consultations with the Kenyan people were robust. The debates on whether the people’s will was reflected in the many drafts that were considered was an extension of the struggle to ultimately guarantee that the Constitution was a people’s constitution. Once in place, the implementation of the Constitution triggered yet another struggle in the constitution-making process. The Constitution Implementing Constitution, Parliament, and courts became central in the struggle to breathe life into the new Constitution. That struggle still continues.
There can be no doubt in the provisions of the 2010 Constitution about the centrality of the Kenyan people in its implementation. In the Preamble it is We, the people of Kenya that ADOPT, ENACT and give this Constitution to ourselves and to our future generations. Chapter One of the Constitution is appropriately titled Sovereignty of the People and Supremacy of the Constitution. Article 1 (1) & (2), respectively, provide that “All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution” and “The people may exercise their sovereign power either directly or through their democratically elected representatives.”
The constitution-making process that birthed the 2010 Constitution was people-driven. The consultations with the Kenyan people were robust.
Kenyans are further called upon under Article 3 (1) “to respect, uphold and defend this Constitution.” Although English and Kiswahili are the official languages of the Republic of Kenya under Article 7, the State is obligated to “promote the development and use of indigenous languages, Kenyan Sign language, Braille and other communication formats and technologies accessible to persons with disabilities.” Under Article 10, participation of the people is one of the national values and principles of governance. In reinforcing this value, other relevant values are patriotism, national unity, human dignity, democracy, equity, human rights, rule of law, non-discrimination, protection of the marginalised, integrity, transparency, accountability, and sustainable development. Under Article 11 the “Constitution recognises culture as the foundation of the nation and the cumulative civilization of the Kenyan people and nation.”
The Kenyan Bill of Rights, under Chapter 4, is perhaps the most progressive in the world. It gives Kenyans the promotion and protection of their whole gamut of political, civil, economic, social, and cultural rights. (However, it must be noted that the Bill of Rights has its limitations. It is not clear on the protection of gay rights. Land rights are still based on the protection of private property under Article 40. Although there is a category of community land, the fundamental land regime is one that protects land as a commodity, making the ownership and use of land the root cause of poverty and gross inequalities.) Article 22 (1) in the Bill of Rights states “Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or threatened.” Article 258 (1) provides that “Every person has the right to institute court proceedings claiming that this Constitution has been contravened or is threatened with contravention. Article 22 (2) and Article 258 (2) decree robust sovereignty of Kenyans as individuals and in the public interest.
All these provisions are the basis of Kenyan citizens and institutions developing robust jurisprudence of public interest litigation (PIL) in the protection of the Bill of Rights, in particular, and the Constitution in general. These provisions give Kenyans the responsibility to protect the Constitution from subversion by Parliament, state institutions, the executive, and/or external forces that could, through investment agreements or military pacts, subvert our Constitution. (We need to glorify the work of Katiba Institute and Okoiti Omtata for breathing life into these provisions. Katiba Institute works with individuals or social movements to take up cases in their interest. So does, Omtata. One hopes that going forward the Law Society of Kenya will take up serious and robust public interest litigation, as provided under the Law Society Act.)
The sovereign power of the Kenyan people is delegated or donated to Parliament (whose members the Constitution decrees be individuals of integrity). The Constitution also provides for how political parties are to mobilise people. Article 81 provides for “free and fair” elections that deliver electoral justice to Kenyans. So, the “legislative authority of the Republic is derived from the people” under Article 94. So are executive and judicial authorities “derived from the people” under Articles 129 and 159, respectively.
The sovereign power of the Kenyan people is delegated or donated to Parliament (whose members the Constitution decrees be individuals of integrity). The Constitution also provides for how political parties are to mobilise people.
All the structures under the national and county executive, such as finance and security, also derive their authority from the people of Kenya. Commissions created under Chapter 15 have one of their objects “to protect the sovereignty of the people” of Kenya. The peoples’ sovereignty reigns supreme in matters of amending the Constitution under Articles 255-257. Article 259 provides for a theory of interpreting the Constitution that is pro-people and cognisant of the people’s economic, social, cultural, spiritual, and political struggles that underpin the word and spirit of the Constitution.
Reality or lip service?
I would like to comment on two case studies, namely, the Makueni County Experiment and the current political initiative called the Building Bridges Initiative (BBI). In my view, the former case study breathes life into the sovereignty of the people while in the latter case the political leadership subverts that same sovereignty.
Case Study 1: The Makueni County Experiment
There is no doubt that the Makueni County Experiment in the implementation of the 2010 Constitution has caught the imagination politicians, public intellectuals, civil society groups, and foreign interests represented by the diplomatic missions in Nairobi. There has been consistent bench-marking to Makueni by governors of other counties. The media could have participated robustly in these bench-marking trips, but that has not been the case.
Makueni is, indeed, a beacon of progress in the implementation of the Constitution. The robust public participation and civic education in matters of county governance are a reflection of the reality of the sovereignty of the people. Makueni County has a county agenda discussed right from the grassroots in a six-tier consultation process. In matters of governance, Makueni County has made a reality of the constitutional requirement of the people’s authority. The county has donated its executive political power to the grassroots in the County Agenda. The consensus reached in the Agenda cannot be varied by the County Assembly or the leadership of the County Government. Monitoring of budgets and the implementation of the Agenda is subjected to robust public participation.
The political leadership of Makueni County is known to be incorruptible. It accounts in a transparent manner the resources entrusted to it by people. Some key projects have become the talk of the country: universal healthcare; scholarships; factories; and other projects in compliance with the county agenda such as the mango and milk plants; and innovative research on education as a public good. Partnerships with foreign interests have been on the basis of the vision of the county, a good precedent in negotiation after the county clearly knows its interests.
It does not surprise me that the Makueni Experiment has not been glorified by the political leadership in this country. Recognising beacons of incorruptibility, progress, public participation, and transparent accountability of resources is the last project the political leadership wishes to see.
Makueni County’s narratives of incorruptibility, good governance, public participation, donating executive power of the county to the grassroots, implementing a county agenda borne out of people’s participation, and allowing monitoring and policing of county budgets and projects should have been the case study the BBI engaged with seriously.
Case Study 2: The Presidential Taskforce on Building Bridges to Unity Advisory (popularly known as BBI)
“We must undertake a major consultation, in the form of an inclusive national conversation culminating in a major conference with the single aim of producing a vision of a unique Kenyan civilisation 100 years from today.” – BBI report, page 100.
“If BBI has failed to unite 6 Kenyans [ethnic barons], [namely] Raila, Ruto, Uhuru, Kalonzo, Mudavadi, and Wetangula, how can it unite 47 million Kenyans?” – Post on Twitter
On page 7 of its report, the BBI Taskforce states who it interviewed:
“The Taskforce heard from more than 400 elected leaders past and present; prominent local voices from the community; and young people who added their voices to citizens in the Counties. This included more than 35 Governors and their Deputies as well as dozens of Senators, MPs, and MCAs in the Counties and in Nairobi. Submissions were given by 123 individuals representing major institutions, including constitutional bodies and major stakeholders in the public and private sectors; 261 individuals and organisations who sent memoranda via email; and 755 citizens who offered handwritten submissions during public forums in the Counties. Kenyans made their views heard as individual citizens, institutionally, and based on diverse interests and experiences. This report reflects their views and insights.”
The BBI, given the sample of consultations above, has the audacity to shamelessly announce from the rooftops that the “Kenyan people have spoken!”
After reading pages 7-17 and 100-126 of the BBI report, I have only come up with burning questions, all involving the implementation of the Constitution. It seems to me that this effort should have been restricted to the political leadership to account for the failures that the report narrates in the nine issues it focuses on. The political leadership could have been asked to give reasons for:
- Their continued politics of division and disunity;
- Their failure to implement national ethos in the 2010 Constitution;
- Their failure to guarantee the independence of national institutions;
- Their failure on the so-called war on corruption;
- The continuing gross violations of human rights of the Kenyan people by state authorities;
- Their failure to restructure the colonial provincial administration system, as decreed by the Constitution, and to reinforce county governance;
- Divisive, corrupt, unfree, not peaceful, unacceptable elections;
- The Executive seeking to claw back constitutional provisions that guarantee the decentralisation and democratisation of the imperial presidency through equitable distribution of political power, land and natural resources of the nation and the defence of devolution;
- The utter failure of political parties to comply with the provisions of Article 91 of the Constitution on the basic requirements for political parties; and the failure of the government to give capacity to the Registrar of Political Parties to police, monitor, deregister and hold political parties accountable in their obedience of the Constitution;
- The deliberate subversion of the national value and principle of inclusiveness through political alliances of the “Big Five” communities to the exclusion of all others;
- The continued wastage and theft of national resources and the failure to implement the many reports of the Auditor-General and other Commissions set to investigate the issue of corruption;
- Their failure to conduct forensic lifestyle audits that were to start with the President and his Deputy;
- Not entrenching of Article 43 on economic and social rights in political platforms and national policy;
- Their failure to reduce the mounting sovereign national debt and its disastrous economic, social, and political consequences;
- Their failure to submit development funds to the counties and to audit the effectiveness of the 15% currently given to the counties;
- Their failure to secure the lives and properties of the people of Kenya;
- The impotency of the Summit of the 48 governments;
- Their failure to make healthcare, housing, water, education, food and the environment public goods, as envisaged by Article 43 of the Constitution; and
- Their failure to transparently account for the authority that the people of Kenya donated to the political leadership.
The Taskforce could have focused on good practices (apparently there were not many) in the implementation of the Constitution. The Taskforce paid lip service to public participation, as is clear from the report.
It does not surprise me that the Makueni Experiment has not been glorified by the political leadership in this country. Recognising beacons of incorruptibility, progress, public participation, and transparent accountability of resources is the last project the political leadership wishes to see.
BBI reminds me of the Saitoti Committee tasked with finding out if Kenyans wanted multiparty democracy. Although the response from the people was in the affirmative, the Committee chose to report to President Moi that the people did not want political pluralism. Here the BBI did not ask the political leadership the reasons for not implementing the Constitution, but goes on to give recommendations that beg that question. The BBI put the cart before the horse. The BBI is a monumental political distraction and an abdication of the national interest for the interests of the ruling Kenyan elite. The BBI provides a golden political opportunity for those who are agitating for an alternative political leadership in Kenya to birth, nurture and consolidate it.
One county governor told me once that the 2010 Constitution gave birth to a beautiful healthy baby whose protection and security was entrusted to a ruling Kenyan elite that was a master in trafficking children’s body parts! A great metaphor that I believe is as pessimistic as it is true.
BBI reminds me of the Saitoti Committee tasked with finding out if Kenyans wanted multiparty democracy. Although the response from the people was in the affirmative, the Committee chose to report to President Moi that the people did not want political pluralism.
However, the metaphor underestimates the resistance of the Kenyan people in the protection of their baby. While the Kenyan elite continues to pay lip service to the implementation of the Constitution, the people of Kenya resist this elite and focus on making the 2010 Constitution a reality in its economic, social, cultural, political, and ideological vision. It mitigates the current status quo in Kenya that the people find unsustainable and unacceptable.
Implementing the 2010 Constitution can be the basis – if given the right political party or environment – of our imagination and thinking of a Kenyan society that is just, free, peaceful, non-militaristic, ecologically safe, equitable, prosperous, and socialist.
This lecture by the former Chief Justice, Dr. Willy Mutunga, was delivered on 10 February 2020 to post-graduate students at The East Africa Institute of the Aga Khan University (EAI) in partnership with IGLUS (iglus.org)
Is the BBI a Trojan Horse Disguised as a Guardian Angel?
The Building Bridges Initiative fails to inspire because it offers simplistic solutions to problems that have more to do with poor leadership than with Kenyans’ inability to be responsible citizens.
I have resisted commenting on the recently launched Building Bridges Initiative (BBI) report, mainly because in Kenya today if you oppose the BBI, you are labelled as being in Deputy President William Ruto’s camp, and if you support it, you are seen as being on the side of President Uhuru Kenyatta and his new ally, former opposition leader, Raila Odinga. And since I do not belong to either of these groups, I was afraid that by commenting on the report, I might inadvertently be labelled pro-Uhuru or pro-Ruto.
Critics of the BBI have mainly focused on whether amending the constitution through the BBI process is, in fact, unconstitutional as it would bypass many of the requirements for amending the 2010 constitution, which are onerous and virtually impossible to fulfill without a national consensus. Some critics, like the Kenya Conference of Catholic Bishops, say that by giving the president power to appoint a prime minister and two deputy prime ministers, the BBI is calling for a return to an imperial presidency.
On the other hand, supporters of the BBI – particularly the “handshake” stakeholders and many commentators in the mainstream media – have lauded the BBI for being the magic pill that will unite the country and spur social and economic development.
Having now read the abridged version of the BBI report, I can conclusively say that it has failed to address the biggest crisis facing this country – that of poor leadership. The most offensive and egregious section of the report is undoubtedly the opening Validation Statement, which places the responsibility for all that is wrong with this country squarely on the shoulders of Kenyans – not on our leaders, who got us into the mess we are in in the first place.
The report states: “Kenyans decried the fact that Kenya lacked a sense of national ethos and is increasingly a nation of distinct individuals instead of an individually distinct nation. And we have placed too much emphasis on what the nation can do for each of us – our rights – and given almost no attention to what we each must do for our nation: our responsibilities.”
As Wandia Njoya pointed out in a recent article, what the BBI has effectively done is told Kenyans that they are to blame if their rights are violated. And if moral and ethical standards have dropped across the country, it’s not because the country’s politicians have lowered moral and ethical standards and have set a bad precedent, but because Kenyans just don’t know how to behave properly. It’s called blaming the victim.
It suggests that Kenyans are somehow wired to be evil or corrupt, that decades of state-inflicted brutality against citizens – an offshoot of a neocolonial dispensation where citizens are treated as gullible and exploitable subjects – has nothing to do with the culture of impunity we find ourselves in. That the contemptuous way in which we are treated by state institutions – at police stations, in public hospitals, in government offices – is somehow our fault. And that the example of how to behave was not established by the state and its officials that consistently fail to deliver justice to Kenyans and turn a blind eye to violence committed by state and security organs, especially against the poor. Remember, this is a country where a chicken thief can end up spending a year in jail, but a minister who has stolen billions from state coffers can get away scot-free.
We are told that discussing history is blaming colonialists and refusing to take responsibility for our own actions. That discussing ethnic privilege and patronage is attacking every single member of that ethnic group. That discussing patriarchy is blaming men. That explaining systemic causes of problems is explaining away or excusing those problems. Every public conversation in Kenya is a war against complex thinking. We have reached the point where Kenyan public conversations are pervaded by this system of intellectual simplification.
Hence the BBI’s proposal to set up a new commission to address “indiscipline in children, breakdown of marriages and general erosion of cultural values in today’s society”. Presumably, this commission will take on the role of parents, school teachers and community leaders “by mainstreaming ethics training and awareness in mentoring and counselling sessions in religious activities and through community outreach programmes”.
What is being implied here is that if only Kenyans were more religious, they might not behave so badly. (I wonder if the drafters of the report know that Kenyans are among the most religious people in the world. Yet we are consistently ranked as among the most corrupt countries on the planet.)
The BBI report recognises that ethnic divisions have polarised the country, but it does not acknowledge that ethnic polarisation is the result of a political leadership that forms opportunistic tribal alliances for its own advantage and is happy to pit one ethnic community against another in order to win elections.
Moreover, its recommendations on how to reduce ethnic animosity appear to be based on the idea that if you force different ethnic communities to live in close proximity to each other, Kenya will miraculously become a society where all ethnic groups live together in peace and harmony.
There is also this misguided belief that if the people in authority are from an ethnic group that is distinct from the ethnic group that these people lord over, there will be more accountability (a model borrowed from the Kenya Police and the colonial and post-colonial district and provincial commissioners’ templates). Hence the Ministry of Education should “adopt policy guidelines that discourage local recruitment and staffing of teachers”.
Many sociologists and behavioural scientists might argue that, in fact, if you want more accountability and cohesion in a community, the leadership should come from that same community. So, for instance, if police officers belong to the same ethnic community that they serve and protect, they are more likely to be more accountable to that community because any signs of misconduct on the part of the officer will be perceived as having a direct bearing on the welfare of that community. A bribe-taking officer is more likely to be reprimanded by his community because it is his community that suffers when he takes a bribe. A Kalenjin police officer posted in Malindi, for instance, will not care what the Giriama community he is extorting bribes from or is brutalising think of him because he is not part of them and is not accountable to them or to their community leaders and elders. This accountability is further diminished by the current practice of police officers regularly being transferred to different localities.
Similarly, in schools, particularly those in remote or marginalised areas, it is important that the teachers be from that community because they also play the role of mentors and role models. We are more likely to follow in the footsteps of someone who looks like us and who has a similar history than someone who doesn’t. Which is why Vice President-elect Kamala Harris has opened the doors to leadership for so many girls and women of colour in the United States.
This is not to say that the BBI report glosses over the problems facing marginalised communities. On the contrary, it makes it a point to highlight that “the marginalised, the under-served and the poor” are suffering and are in urgent need of “an immediate helping hand and employment opportunities to help them survive”. What the report fails to recognise is that the Constitution of Kenya 2010 was designed to ensure that such communities are not condemned to perpetual poverty. Devolution was supposed to sort out issues of marginalisation by ensuring that previously marginalised communities and counties are empowered to improve their own welfare. By making them recipients of hand-outs, the BBI has added insult to their injury.
Thankfully, the report does recommend that previous reports by task forces and land-related commissions, including the Ndung’u Land Commission and the Truth, Justice and Reconciliation Commission (TJRC), be implemented. My question is: If President Uhuru Kenyatta did not implement the recommendations of the TJRC, which handed its report to him in May 2013 shortly after he assumed the presidency, what guarantees do we have that he and his BBI team will implement the recommendations now? The president has also failed on his promise of a Sh10 billion fund for victims of historical injustices. What has changed? Clearly not the leadership (and here I mean the entire leadership, not just Uhuru’s).
Silences and omissions
Moving on to another marginalisation issue: women’s representation. We all know that Parliament has actively resisted the two-thirds gender rule spelled out in the constitution. So what epiphany has occurred now that suddenly there is an urgent desire to include more women in governance institutions? If Parliament had just obeyed the constitution, there would not be a proposal in the BBI to ensure that no more than two-thirds of members of elective or appointive bodies be of the same gender. It would be a given.
And yet while BBI gives with one hand, it takes with the other. The BBI task force proposes that the position of County Women’s Representative in the National Assembly be scrapped.
What’s worse, the BBI actually appears to welcome the recommendation of “some Kenyans” that Independent Electoral and Boundaries Commission (IEBC) commissioners be appointed by political parties. Really? If you think that the 2007, 2013 and 2017 elections were fraudulent and chaotic, then wait for serious fraud and possible violence in an election where the electoral body’s commissioners represent party interests. (If I had my way, I would disband the IEBC altogether and put together a non-partisan body comprising foreign officials to run elections in this country. Maybe then we would have some hope of a free, fair and corruption-free election.)
The BBI is also silent on the role of the IEBC in vetting candidates, and ensuring that they adhere to Chapter Six of the Constitution on leadership and integrity. Let us not forget that many of the candidates in the last two elections had questionable backgrounds, and some were even facing charges in court. Why did the IEBC not ensure that those running for office had clean records?
On the economy, or what it calls “shared prosperity”, the BBI, emphasises the role of industry and manufacturing in the country’s economic development but is silent on agriculture, which currently employs about half of Kenya’s labour force and accounts for nearly 30 per cent of Kenya’s GDP, but which remains one the most neglected and abused sectors in Kenya. It’s a miracle that our hardworking and much neglected farmers are able to feed all of us, given that they receive so little support from the government, which consistently undermines local farmers by importing cheap or substandard food and by providing farmers with few incentives.
Besides, it is highly unlikely that Kenya will become a factory for the region, let alone the world, like China, because it simply does not have the capacity to do so. Why not focus on services, another mainstay of the economy?
The BBI also talks of harnessing regional trade and cooperation and sourcing products locally but, again, we know this is simply lip service. If Uhuru Kenyatta’s government was keen on improving trade within the region, it would not have initiated a bilateral trade agreement with the United States that essentially rubbishes and undermines the country’s previous regional trade agreements with Eastern and Southern African countries and trading blocs.
On the yoke around every Kenyan’s neck – corruption – the BBI’s approach is purely legalistic and administrative. It wants speedy prosecution of cases involving corruption and wastage of public resources and it wants to protect whistleblowers. (Good luck with the latter. In my experience, no whistleblower protection policy has protected whistleblowers, not even in the United Nations.)
BBI also wants to digitise all government services to curb graft. But as the economist David Ndii pointed out at the recent launch of the Africog report, “Highway Robbery: Budgeting for State Capture”, if corruption is built into the very architecture of the Kenyan government, no amount of digitisation will help. Remember how the Integrated Financial Management Information System (IFMIS) was manipulated to steal millions from the Ministry of Devolution in what is known as the NYS scandal? Computer systems are created and run by people, and these people can become very adept at deleting their digital footprints from these systems. As the former Auditor-General, Edward Ouko, pointed out, when corruption is factored into the budget (i.e. when budgets are prepared with corruption in mind), corruption becomes an essential component of procurement and tendering processes. So let’s think of more creative and innovative ways of handling graft within government.
Which is not to say that the BBI task force has not struggled with this issue. There are various proposals to amend public finance laws to make the government more accountable on how it spends taxpayers’ money. But we know that these laws can be undermined by the very people responsible for implementing them, as the various mega-corruption scandals in various ministries and state institutions have shown.
A Trojan horse?
Many Kenyans suspect that perhaps the real and only reason for the BBI is that it will allow for the creation of new powerful positions – such as that of prime minister to accommodate both Raila Odinga and Uhuru Kenyatta – and will set the stage for a return to a parliamentary system of governance instead of the current presidential “winner-takes-all” system. But while the latter might appear to be a worthwhile endeavour, the fact that former opposers of the new constitution and the parliamentary system now appear to be endorsing both suggests that there is something more to this than meets the eye. As Prof. Yash Pal Ghai has repeatedly stated, the constitution endorsed at Bomas was premised on a parliamentary system and was only changed at the last minute to accommodate a presidential system. That is how we ended up where we are now.
It also appears strange that those who benefitted most from the presidential system now want to change the constitution. As Waikwa Wanyoike, put it:
Worse, those hell-bent on immobilising the constitution have done so by conjuring up and feeding a narrative that it is an idealistic and unrealistic charter. Because they wield power, they have used their vantage points to counter most of the salutary aspects of the constitution. Uhuru Kenyatta’s consistent and contemptuous refusal to follow basic requirements of the constitution in executing the duties of his office, including his endless defiance of court orders, stands out as the most apt example here.
Yet all this is calculated to create cynicism among Kenyans about the potency of the constitution. Hoping that the cynicism will erode whatever goodwill Kenyans have towards the constitution, the elites believe that they can fully manipulate or eliminate the constitution entirely and replace it with laws that easily facilitate and legitimise their personal interests, as did Jomo Kenyatta and Moi.
If indeed we want to go back to a parliamentary system through a referendum, then we should hold the referendum when the current crop of politicians (some of whom, including Uhuru Kenyatta and William Ruto, were opposed to the 2010 constitution in the first place) are not in leadership positions because many Kenyans simply don’t trust them to do what is in Kenyans’ best interest. After all, a fox cannot be relied on to guard a chicken coop.
Already the president has urged Parliament to pass laws that conform to the BBI proposals – this even before the proposed referendum that will decide whether the majority of the country’s citizens are for or against the BBI’s raft of recommendations. In other words, the BBI proposals may become laws even before the country decides whether these laws are acceptable and are what the country needs.
Are the goodies proposed in the BBI, such as providing debt relief to jobless graduates and allocating a larger share of national revenue to the counties, just enticements to lure Kenyans onto the BBI bandwagon so as to ensure that the current political establishment consolidates its hold on power? Is the BBI a Trojan horse disguised as a guardian angel? Only time will tell.
One possibility, however, is that a groundswell of public opinion against the BBI might just overturn the whole process.
Kenyan Statues Must Fall
What could or should full decolonization in Kenya look like?
In the last few months, Kenyans on Twitter have been circulating images of statues of political elites replaced by deserving national heroes. Most notable is the replacement of the statue of the first president Kenyatta with that of Mau Mau leader Dedan Kimathi. This movement has been spurred by the toppling of statues in the US and Europe, where protestors are demanding that their countries grapple with the protracted systemic racism that pervades quotidian Black life.
Calls for the removal of statues that serve as colonial and racist relics have become common means of subverting power structures. In 2015, the #RhodesMustFall movement at the University of Cape Town in South Africa successfully called for the removal of British colonialist Cecil Rhodes statue. Rhodes, a British imperialist and mining magnate, was at the forefront of laying the foundations of apartheid in South Africa. This decolonizing movement sparked similar outrage on other campuses, as in Oxford, where protesters are now demanding the removal of the Rhodes statue by the university. Similarly, in the US, the politics of memorialization remain contentious, as calls for institutions to atone for their involvement in slavery continue.
Closer to home, in Kenya, what does the fall of statues mean for most postcolonial cities that are mired in complex and intricate histories, whose architecture centers colonial rulers and the postcolonial elite? Cities were, and remain, arenas of power contestations, political games, and socio-cultural constructions. These conjunctural spaces are important sites of study in that they not only inform us about the larger political situations in the country, but also the relationship between the nation-state and its citizens, the pre-independent state, and its former metropole. Borrowing from Marxist thinker Henri Lefebvre who contends that conceptions of space have always been political, analyzing city structures is paramount.
Attempting to trace the history of Nairobi’s statues and monuments brings up the city’s deep ties to British colonialism, manifested in the politics surrounding this memorial architecture. During the colonial period, England’s proclivity for erecting monuments and naming streets and physical features to honor their own heroes was a tool for their imperial project as they established Western dominance. For example, the Duke of Connaught unveiled the Queen Victoria statue in 1906, signifying the ascendancy of British rule in Kenya. Alibhai Jevanjee, an Indian who owned a shipping company that worked with the Imperial British East Africa Company—a colonial enterprise that administered the protectorates before the British government assumed full responsibilities—paid for its construction. The Queen’s statue was located in the Jevanjee Gardens in the Central Business District until 2015 before it was vandalized. And, in celebration of King George V’s 25-year reign, his life-like statue graced the newly built High Court Square in the city center. Later, during a state of emergency (1952-1959) imposed by the British colonial government in response to growing anti-colonial upheavals, the administrators erected the East Africa Memorial and the King George VI Memorial. The East Africa Memorial, built in 1956 in the Nairobi War Cemetery, recognized the efforts of the multi-racial troops that fought in Italian Somaliland, Southern Ethiopia, Kenya, and Madagascar in an effort to prop up loyalty to the colonial government. In 1957, the King George VI memorial plaque was put up along Connaught Road, now Parliament Road, to assert colonial presence. These statues and monuments were taken down in 1964 after Kenya was recognized as a republic, signaling the end of British rule.
Some might argue that the tearing down of colonial monuments reduced Nairobi’s significance as a site of memory, however telling accurate history to prevent erasure of the past should be emphasized. Initially, removal of the statues, as well as renaming exercises, were a means to promote nationalism and reduce imperial domination in post-colonial Nairobi. Political elites co-opted this process to position themselves at the forefront of the country’s independence struggle, erasing the efforts of deserving nationalists and groups that fervently fought colonization, such as the Mau Mau.
The erection of monuments in Nairobi after independence was strategically undertaken to inscribe power and shift the landscape. These notable monuments were important instruments in asserting authority over Kenyan citizens and especially those who lived in the city and interacted daily with these structures. In 1973, the government commissioned a London-based sculptor, James Butler, to design a twelve-foot seated statue resembling President Kenyatta, showing continuity with the colonial monumental landscape by replacing King George VI plaque at the city square. The statue stands as an island in front of the Kenyatta International Conference Center (KICC) square—the conference center being one of the more salient buildings in Nairobi. The KICC was the tallest building in the city for about 26 years, underpinning the strategic position of the Kenyatta statue. Interestingly, President Kenyatta launched the conference center and the statue during the 10th anniversary of Kenya’s independence.
President Daniel Toroitich Arap Moi came to power in 1978, after Kenyatta’s sudden death and his era was also riddled with monuments as commemorative tools. Just as Kenyatta had the Harambee (pulling together) philosophy, which emphasized collective participation and self-help in development, Moi developed Nyayo, (footsteps) as he was keen on following Kenyatta’s ideals. Nyayo, intended to be a moving force and denoting peace, love, and unity, would later be legitimized as Kenyan law. To be “anti-Nyayo [was] to be anti-Kenya.” Moi set about building monuments all over the city that reflected an ideological philosophy that those around him deeply espoused. On the 20th anniversary of Kenya’s independence in 1983, two monuments were launched: a grand water fountain in Central Park and an intricate National Monument at Uhuru Gardens, just outside the city.
Prior to these celebrations, rumors spread of an alleged coup by Charles Njonjo, a member of the cabinet challenging Moi’s credibility. In response, Moi called for impromptu elections, ensuring that Njonjo’s cronies would be kicked out of the government. The decision to erect these two monuments at the end of the year was, therefore, a strategic signifier that the Moi/Nyayo government was still in power. Geographically, the locations of these monuments were no coincidence either. The Nyayo Fountain was built in Central Park, one of the few remaining public green spaces that most Nairobians frequented to unwind and where most political rallies were held. The National Monument was erected at Uhuru Gardens, the site for the symbolic lowering of the Union Jack at independence. This prominent white Nyayo monument was flanked by two black sculptures to show, ironically, that the government stood for peace and purity.
Erecting statues, as well as renaming streets, institutions, and buildings in Nairobi was meant to signal new political leadership and ideologies. It was also meant to recognize freedom fighters, whose efforts the independent government criminalized and largely ignored. Memorialization is ongoing to date, and despite the practical justifications to erect statues in memory of freedom fighters, the motives of such projects have remained deeply political. For example, it was not until 2007 when Dedan Kimathi’s statue was unveiled, finally recognizing the tremendous efforts of the Mau movement. This statue was put up following surviving fighters’ outcry to honor their marshal. Previously, Kenyan leaders had considered the movement a “terrorist” organization, dropping this colonial-era categorization in 2003, more than 50 years after it was imposed. This would finally allow freedom fighters to demand compensation from the British government for the torture they endured during the rebellion. While Kimathi’s statue is a pride of the city and remains a site of protest and prayers, it has been neglected—unlike Kenyatta’s statute that remains guarded in a controlled space. Furthermore, despite this symbolic recognition of the war heroes, Kimathi’s family, as well as other Mau Mau veterans, continue to live in squalid conditions dispossessed of their land, as the political dynasties plunder our country.
Nairobi remains a space where imperial and postcolonial ideas continually collide to create a new political hybrid that uplifts elite actors while disenfranchising the majority. Monuments celebrating members of the political elite dominate the political landscape, shaping public opinion through farcical reputation-building. As Ugandans call for their streets to be renamed in Kampala, we also insist on not only interrogating and falling our physical structures, which belie the deeds of our “founding fathers,” but also providing history about these monuments that foregrounds the efforts of those who actually fought for our independence.
Jacinda Ardern, a New Leadership Paradigm and the New Zealand Miracle
New Zealand’s Prime Minister is a very nice centrist. People in the rest of the world, including Africans, calling for her to be emulated should be careful what they wish for.
Ever since first coming to power in 2017, New Zealand Prime Minister Jacinda Ardern has been lauded around the world as a refreshingly empathetic and competent contrast to the increasingly right-wing and often inept leadership seen in countries including the US, the UK, Australia, Brazil, and India. The African continent has been no exception to “Jacindamania,” with people in Nigeria, South Africa, Zimbabwe, and more expressing their admiration for Ardern and their desire for a similar leader.
When she won a second term in mid-October on the back of a landslide victory for her center-left Labor Party, for example, Zimbabwean opposition leader Nelson Chamisa tweeted congratulations. Chamisa also used the opportunity to unfavorably contrast Zimbabwe’s election infrastructure (“humbling and refreshing to see others holding clean, free, and fair elections”), though some wished to remind him that he was no Ardern: “at least they lead from the forefront and are very strategic, not just on Twitter writing bible verses!” Elsewhere on social media, some South Africans compared her gender and youthfulness to their revolving door of old, underwhelming leaders. Their Nigerian counterparts, in the midst of a national strike against police brutality, concurred: “Nigeria needs a President like Jacinda Ardern. Young, passionate, hardworking consistent and a listener…” (It helped when one of her party’s candidates, Terisa Ngobi, partly of Samoan descent and married to a Ugandan immigrant, defeated a white South African running in Ōtaki, near the capital Wellington, for the far-right New Conservative party. Martin Flauenstein, who finished fifth out of eight candidates, claimed to be an “apartheid survivor,” only to push for “reduced” immigration and to criminalize abortion. For this, he was thoroughly mocked online by South Africans back home.)
But the international hype around Ardern often obscures what it is she represents, and her actual record to date. While there is no doubt that Ardern is a charismatic and effective leader, she has yet to deliver on her promise to lead a truly transformational government.
Ardern’s first term in office was largely defined by multiple unprecedented crises and she rightly deserves significant praise for her response to them. She has demonstrated calm, compassionate, and effective leadership in steering the country through the white supremacist massacre in Christchurch, the deadly volcanic eruption at Whakaari, and now COVID-19. Her response to the Christchurch massacre and the Whakaari eruption prompted journalist Toby Manhire to describe Ardern as bringing “an empathy, steel and clarity that in the most appalling circumstances brought New Zealanders together and inspired people the world over.” Arden has brought the same approach to the COVID-19 response, where her government’s clear communication and swift and decisive action has resulted in one of the most effective responses in the world.
Yet, despite Ardern’s effective leadership and some scattered positive changes—including tightening the country’s gun laws, increasing New Zealand’s refugee quota, investing a record amount in mental health, and decriminalizing abortion—she has largely failed to live up to her own progressive rhetoric and vision for the country. After coming to power in 2017, Ardern promised a “government of transformation” that would “lift up those who have been forgotten or neglected” and “build a truly prosperous nation and a fair society.” Instead, across a range of areas the reality of her government’s action has often been limited and underwhelming.
On climate change, Ardern described it in 2017 as her “generation’s nuclear-free moment.” And yet while her government banned new offshore oil and gas exploration permits and passed the Zero Carbon Act setting a target of net zero emissions by 2050, existing exploration permits remain valid and the act lacks enforcement mechanisms. Moreover, there is no systematic approach to overhauling different sectors of society to address emissions, particularly in transport and agriculture, and to create a green economy. On voting rights, Ardern’s government partially undid the previous National Party government’s ban on prisoner voting. But in only restoring voting rights for prisoners with sentences of three years or less, the government ensured that most prisoners remain disenfranchised. On welfare, the government made some improvements, including introducing a small increase to benefits—but well below the amount recommended by a working group the government had convened, and ignoring, thus far, the majority of the working group’s other recommendations. On tax reform, despite proposing a modest change to the top tax rate, Ardern has repeatedly ruled out a capital gains tax (to tax the sale of assets) and more recently ruled out a wealth tax proposed by the left-wing Greens. On drug reform, while the government made changes to improve access to medical marijuana, the legalization of recreational use was put to a referendum. Ardern then refused to use her political capital to advocate for legalization or say how she would vote in the referendum, only revealing she voted in favor of legalization after results were announced and the public had narrowly voted against it.
If people across the African continent want nice, competent, centrism then Ardern is certainly a leader to emulate. But if they want truly progressive change then it remains to be seen whether she will provide a compelling example to follow. While Ardern tinkers, the climate crisis worsens, inequality increases, housing becomes ever more unaffordable, and poverty and homelessness persist at alarming levels.
Following the recent election, Labor’s former coalition partner and center-right populists New Zealand First (generally regarded as a handbrake on progress during Ardern’s first term) are now gone from government and parliament and Ardern arguably has more political capital than ever. The resounding victory for the left in New Zealand, with the Labor Party and the Greens combined winning over 70 seats in the 120-seat parliament, means there are now no excuses for Ardern not to enact a coherent transformational progressive agenda.
The next three years will ultimately show whether Ardern has the political will and imagination to do so, but so far she has given little indication that her second term will be significantly different from her first. All we are left with then is centrist tinkering and the seemingly endless accumulation of political capital without ever using it.
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