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It’s Time To Make the Sovereignty of Wanjiku Count as Decreed by Our Constitution

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Both the state and ruling elite have lost the legitimacy and morality to rule.

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It’s Time To Make the Sovereignty of Wanjiku Count as Decreed by Our Constitution
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The idea of the people’s sovereignty in our Constitution has been an abstract concept since its promulgation on August 27, 2010. But not any more, thanks to both a state and a political leadership that has led an assault on our sovereignty – so the idea is, now indeed, real and alive!

It’s Time to make the Sovereignty of Wanjiku count as decreed by our Constitution

Domination, oppression and exploitation beget resistance. Crises breed opportunities for such a resistance. The COVID-19 pandemic has “raptured normalities” the world over. Kenya has not been an exception as the pandemic has breathed life into the clarion call for the implementation of the 2010 Constitution.

Where do we find the sovereignty of the Kenyan people in the 2010 Constitution?

Right from the beginning, the Preamble of our Constitution: We, the people of Kenya adopt, enact and give the Constitution to ourselves and our future generations. Article 1(1) provides that “All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.” Article 1(1) states “The people may exercise their sovereign power either directly or through their democratically elected representatives.We are called upon as Kenyans under Article 3 to “respect, uphold and defend the Constitution.”

It’s Time to make the Sovereignty of Wanjiku count as decreed by our Constitution

That responsibility and obligation allows Kenyans to make sure “any attempt to establish a government otherwise than in compliance with this Constitution,” which the Constitution decrees as “unlawful” is resisted in our national duty to respect, uphold and defend our Constitution.

It is fundamentally important to bear in mind that we Kenyans can exercise our sovereign power directly.

Participation of the people in all societal matters is a national value under Article 10 of the Constitution. Executive, Legislative, and Judicial authorities are derived from the people of Kenya. So, Wanjiku is also the sovereign President, Speaker, Chief Justice, Senator, MP and MCA, indeed, the sovereign in all public and state offices. The independent institutions, the security apparatuses, and the financial bodies derive their authority from Wanjiku.

The idea of the people’s sovereignty in our Constitution has been an abstract concept since its promulgation on August 27, 2010. But not any more, thanks to both a state and a political leadership that has led an assault on our sovereignty – so the idea is, now indeed, real and alive.

They are all called upon “to protect the sovereignty of the people” of Kenya. National resources are held in trust for Wanjiku. Our Bill of Rights is the most progressive in the world by giving us the promotion and protection of their whole gamut of political, civil, economic, social and cultural rights. Implementing these rights fulfills the promise of our democracy and ensures the equitable distribution of our national resources. The sovereign debt benefits Wanjiku and not the institutions and people to whom she has delegated power.

Our power to recall MPs and MCAs as well as our power to impeach the President reflect that Wanjiku can recall the power she has donated to all state institutions and officers. The state’s “machinery or forces of violence” are told in very clear terms that national security is protection of the sovereignty of the country, “its people, their rights, freedoms, property, peace, stability and prosperity, and other national interests” under Article 238 of the Constitution.

Devolution is about the equitable distribution of political power and resources. It is about grassroots democracy from the village when Kenyans get to control and share not only resources but also their political power.

General COVID-19 marches all over the world

Unfortunately for both the state and the ruling elite – General COVID-19 marched all over the world since January 2020 leaving in his wake death and destruction. Wanjiku started demanding her rights under the 2010 Constitution by asking the state and the elite the following questions: Where is my right to the highest attainable standard of health? Where is my accessible and adequate housing? What about my reasonable standards of sanitation? Where is my freedom from hunger and to have adequate food of acceptable quality? Where is my clean and safe water in adequate quantities? My social security? My children’s education? Why are you denying me emergency medical treatment?

Devolution is about the equitable distribution of political power and resources. It is about grassroots democracy from the village when Kenyans get to control and share not only resources but also their political power

The responses to Wanjiku were inhuman: ulisikia wapi (who told you this?) When Wanjiku insisted on asking these questions the Karaus (security personnel) responded with demolitions of housing, sprayed poisonous tear gas and dangerous water canons to disperse Wanjiku’s children contrary to the dictates of Article 37 of the Constitution. Police officers are ordered other Article to protect the right of citizens to “peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.” In my long history of activism I have never seen citizens armed. Indeed, its the police who are armed, and arm goons and criminals to attack peaceful protesters. There were reported extrajudicial killings in the people’s informal settlements. The rich and powerful kept their billions in their foundations and banks (except for two) and shamelessly sold donated PPE’s, surgical masks and vitamins, and announced from the rooftops that they are now COVID-19 millionaires and billionaires.

As if this was not enough, Wanjiku was told to keep social distance, wash hands and wear surgical masks. Curfew was declared and hunger imposed in the bargain. Wanjiku’s cries for justice under the Constitution were met with state brutality and elite responses of Utado (what will you do if you cannot breathe?). No humanity, no caring, extreme callousness and untold greed on the part of the state and the elite. Both the state and ruling elite lost the legitimacy and morality to rule.

It’s Time to make the Sovereignty of Wanjiku count as decreed by our Constitution

In the midst of all this, Wanjiku is told that the only game in town is called Building Bridges Initiative (BBI). Wanjiku responds Kweli ashibaye hamjui mwenye njaa/those who are never hungry never experience hunger. The response is yet again ulisikia wapi? BBI itafanyika upende usipende/BBI will happen whether you want it or not. Wanjiku can see that the government and the opposition have become an imperial presidency, combining support for imperialism and the engine of dictatorship that we rejected by promulgating the 2010 Constitution. BBI is the subversion of the Constitution and the political coup that is unlawful under Article 3 (2) of the Constitution. Wanjiku has decided to resist BBI and respect, uphold, and defend the Constitution.

The official opposition has ceased to be the government in waiting, signaling the beginning of the idea of an authentic people’s opposition. For Wanjiku, the “people’s president” urged by the leader of the opposition has been demystified as elite chicanery, a ploy to claw back the gains of the 2010 Constitution.

In the midst of all this, Wanjiku is told that the only game in town is called Building Bridges Initiative (BBI). Wanjiku responds Kweli ashibaye hamjui mwenye njaa/those who are never hungry never experience hunger. The response is yet again ulisikia wapi? BBI itafanyika upende usipende/BBI will happen whether you want it or not.

That is how the idea of the sovereignty of Kenya’s people ceased to be abstract. Resistance to the state and the ruling elite in the name of #Tekeleza/Linda Katiba/implement and defend the Constitution is now loud and clear.

Wanjiku’s sovereignty in various matters is being validated in courts through Public Interest Litigation. Various petitions have been filed in the High Court while civil society movements are organizing and mobilizing Wanjiku to stand up for the protection of the Constitution. In the constitutional works is discussion of the institution of private prosecution under Article 3 (2) of the Constitution against the proponents of BBI for seeking to “establish a government otherwise than in compliance with this Constitution.” Activities of the BBI are going to be constitutionally tested and criminal proceedings shall be brought by Wanjiku to stop BBI from overthrowing the Constitution by unlawful means, the crime of treason!

When General COVID-19 Retreats

While General COVID-19 occupies our Motherland, Wanjiku will not distinguish him from the state and the ruling elite. Wanjiku will have to fight both. The state and the ruling elite have not made any concessions as decreed by the Constitution. The uses by the state and the ruling elite of the machinery of violence under the conditions imposed by the occupation of COVID-19 have been ill advised and inhuman. This is not the time to put profits, corruption and theft before the interests of Wanjiku.

It’s Time to make the Sovereignty of Wanjiku count as decreed by our Constitution

The state and the ruling elite are both endangering our democracy, our peace and security, our prosperity, and our future. BBI cannot be an answer to this national crisis. Police brutality is not an answer to the crisis.

If General COVID-19 is to be defeated, the state and ruling elite must be on the side of the people. There is no evidence that both want to be. The unfolding history of this country will validate my belief that those who are not with the people of Kenya are on the side of General COVID-19. They will consequently also retreat with General COVID-19. The state and the ruling elite will consequently lose their constitutional legitimacy to rule.

When that happens there must be an alternative political leadership that Kenyans are convinced will be different from the current one – a leadership that will use the institution of the state in the material interests of Kenyans. It has to be a leadership that will implement the critical pillars of the 2010 Constitution while auditing, through a national participatory consultation, from the grassroots, from the ground up, our Constitution. The audit will be about illuminating the weaknesses in the Constitution and thereby plugging those gaps so that the voice of our united people will lead in the decision making of our country’s future.

Edited by Natasha Elkington

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Dr Willy Mutunga is a public intellectual and former Chief Justice of Kenya.

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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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