Maintain Law and Order, But Do Not Undermine Fundamental Rights and Freedoms

8 Oct

By Javas Bigambo

Kenya’s politics easily problematizes our nationhood. It makes a façade of constitutionalism with zealous artificiality and credulous dalliance with the rule of law. Nationhood requires shape, principle, direction and protection. That is exactly where the problem is in Kenya.

Constitutional provisions are not bread crumps under the table of governance, that can be swept away into the dustbin of authoritarian rule, or dismissed whimsically. They are hard-sought entitlements secured by protest-hardened and dauntless people, some living and others long departed to the world of the silent dead.

A Constitution is a distillation of aspirations, goals, dreams, and determination of a country’s citizens, providing for a framework of governance they desire, through a politically negotiated and legally binding document. It is for this reason that a plebiscite was merited, and for Kenya’s case, overwhelmingly endorsed.

As a matter of fact, good governance demands constitutional efficacy, and that efficacy seems to be Kenya’s Achilles’ heel.

Constitutional efficacy is inclined toward transformative constitutionalism. Karl Klare puts it clearly by stating that transformative constitutionalism entails “a long term project of constitutional enactment, interpretation, and enforcement committed … to transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction.”

We are living in times when a Deputy President flagrantly insubordinates a sitting President, a manifestation of moral putrefaction. Times when a sitting President seems unable to properly fight corruption, hard-pressed to reduce public debt, and so shy to manage the ambition of his deputy. Times when citizens have contentedly embraced the physiognomies of a flag and permitted themselves to be swayed whichever way by the winds of politics. I hold that there must be no duality in constitutional efficacy and the application of the rule of law.

There is a serious lack of constitutional morality on the part of the Executive arm of government. Right from the Executive’s penchant for disregarding court decisions (while running to the same courts for protection), to issuing directives in under the shelter of the Public Order Act, directives that spit on the shiny surface of protected rights, to issuing Executive Orders that partly frown at the Independence of Constitutional Commissions.

In the not so distant past, a young boy refused to shave his hair, and with the support of his parents, they faced off with the school administration in court, in what culminated into a victory for freedom of religion and freedom of expression, altogether domiciled in Kenya’s Bill of Rights.

We must not permit ourselves to have a weak legal system, though we seem to have began a journey down that dark ugly path.

While attempting to put off the embers of political violence, the government must not overstep the utility of the Public Order Act and violate fundamental human rights, which among them include the freedom of movement, assembly and speech.

I have listened carefully to the directive by the government on matters hate speech and political engagements. Kenya’s Bill of Rights is so rich that it appreciates the right of everyone to be different, and a right to hold opinions that vary, different faith, to assemble, and to engage in political activities, and to freely exercise speech, as long as it is reasonable and within the margins of the law. Scaremongering must not be a lifeline for wielders of power. The rule of law must be the shining light for all, not some.

The Bill of Rights[1] forms the sovereign blueprint for the recognition, protection, promotion, fulfillment, enforcement and limitation[2] of human rights. In a bid to ensure the enjoyment of human rights to the greatest extent, the law provides that:

A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.[3]

Article 21(1) of the Constitution provides that it is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights. In democratic governance, rights and freedoms are more than pious aspirations. They form part of the law. It is the duty of the state and every state organ to observe, protect, promote and fulfil the rights and fundamental freedoms.[4]

Importantly, Article 259 (1) (a) – (d) of the constitution provides: –

“(1) This Constitution shall be interpreted in a manner that— (a) promotes its purposes, values and principles; (b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; (c) permits the development of the law; and (d) contributes to good governance.”

Of course, DP William Ruto should conduct his politics in a manner that threatens the breach of peace. On it’s part, the State must as well ensure good governance by adhering to the rule of law, and demonstrate respect for the courts.

If DP Ruto wants to be President, it is his ambition. Such ambition is protected as well. In the case of International Centre for Policy and Conflict & 5 others v Attorney General & 5 others [2013] eKLR, where the court stated that every adult citizen has the right to be a candidate for political office in a political party of their choosing without undue and unreasonable restrictions. [5]

Deputy President Ruto must however be reminded that he is part of the Jubilee administration, and must therefore work hand-in-hand with President Uhuru Kenyatta to deliver on their mandate, before he seeks new mandate on his own. It is for this reason that the people have a right to hold the Jubilee government accountable, including DP Ruto.

The death of the Murang’a two, and the attendant violence must be unreservedly condemned, because all was politically instigated. The church must as well be careful not to lose its saltiness. They should not be seized by the spirit of Biblical Judas Iscariot, then proceed to betray the cause of independent spiritual nourishment of mortals merely for legal tender.

It is on the basis of these freedoms that people can be active citizens who get involved in political matters and are able to express their concerns and promote their interests.[6]  The Constitution provides for the Bill of Rights whose primary role is to protect social, cultural, economic, political and civil rights of citizens. Kenya has gone ahead to ratify and sign various treaties and conventions that relate to the protection of fundamental human rights and freedoms.

Curiously, the civil society has been disturbingly quiet in the face of consistent violations of various rights, and brazen attempt to overthrown or undermine constitutional provisions by the government. A political system without a genuine civil society cannot legitimately claim to be a democracy[7].

The civil society has an obligation to educate citizens on their democratic rights and responsibilities to help in attainance and sustenance of democracy.

The upshot is that it is the government’s responsibility to ensure the adherence of the rule of law. But the same government must not make an unnecessary attempt to constrict fundamental rights and freedoms in a manner that undermines the essence of democratic governance. We have to guard against excesses. Even the lion, the king of the forest, protects himself against flies. The rule of law should be no respecter of persons, whether high ranking government officials, key political figures or their family members.

Javas Bigambo works with Interthoughts Consulting


[1] See Chapter 4 of the Constitution of Kenya, 2010

[2] For example, see Article 19 (c) as read with Article 24 (5) and Article 58 (6) of the Constitution of Kenya 2010.

[3] See Article 24 (1) of the Constitution of Kenya, 2010

[4] Constitution of Kenya 2010, Art.21

[5]Petition Nos 552, 554, 573 & 579 of 2012 (Consolidated).

[6] ibid

[7]Cohen, Jean L., and Andrew Arato. Civil society and political theory. MIT press, 1994.

The Gender Rule and Intersectional Lenses in Kenya’s Governance

23 Sep

By Javas Bigambo

Intersectional methodologies are a vital ‘lens’ in analysing critical power structures in Kenya, and the extent to which they affect multifarious governance frameworks.

The recent advice by Kenya’s Chief Justice David Maraga to President Uhuru Kenyatta to dissolve Parliament for failing to enact legislation to give statutory effect to the constitutional provision of two thirds gender rule in the Constitution, makes lovely fodder for debate on intersectionality in Kenya’s politics.

The Executive and the Judiciary have had a long push-and-pull relation. President Kenyatta and CJ Maraga started working together with great smiles, now such cannot be afforded by either party.

Kenya’s judiciary has affected government’s balance of power in many ways that are historical. The Supreme Court affected the Executive arm of government by overturning the re-election of President Uhuru Kenyatta in 2017. Now the Chief Justice has advised President Uhuru Kenyatta to dissolve Parliament (National Assembly and Senate) on the strength of Article 261(7) for failure by Parliament to pass the Two Thirds Gender rule. This will invariably affect the balance of power and polity in Kenya.

With a single jaw of a donkey, Biblical Samson killed 1,000 Philistines. So it is with Maraga, that with the single stroke of his pen through his advice to the President, Chief Justice has thrown the Kenyan polity and ruling class into a constitutional dilemma.

The participation and contribution of women on governance matters is no longer insular and discreet. In the words of Thomas Sankara, “Women’s fate is bound up with that of an exploited male. However, this solidarity must not blind us in looking at the specific situation faced by womenfolk in our society.”

Dissolving Kenya’s Parliament would be a Molotov Cocktail to the BBI. The role of the Executive will be adversely affected without Parliament in place. So Raila and Uhuru are not in favour for the dissolution of Parliament for political reasons and interests. If they forestall the dissolution, then such disrespect for the Constitution would make it meaningless to pursue constitutional changes through BBI if they are not constitutionally cultured.

This places the President and his political interests between very huge hard rocks, limited leg room and limited head space.

When assuming the Executive Office of the President of the Republic of Kenya, President Uhuru Kenyatta swore and stated that “ I Uhuru Muigai Kenyatta, I swear that I will truly and diligently serve the people and the Republic of Kenya in the office of the President/ Acting President of the Republic of Kenya; that I will diligently discharge my duties and perform my functions in the Office of President/Acting President of the Republic of Kenya; and I will do justice to all in accordance with this Constitution, as by law established, and the laws of Kenya, without fear, favour, affection or ill-will. So help me God”.

He has many times been called upon by circumstances to live out the significance of that oath. Now the challenge has been brought to his doorstep.

An analysis of the political happenings in Kenya’s political spaces depict lucidly that conscious prejudice in Kenya is distressingly encyclopedic, intensely celebrated and humorously embraced, making us lose direction from the true North of reason in political and development affairs.

Such prejudices are informed by the shadows of patriarchal dominance; class structures; dynasties driving politics; tribalism; nepotism; and at times false egos and attitudes of self importance.
Social forces in Kenya, which include socioeconomic factors, unfair nomination practices within political parties, poor governance practices, cultural and societal values and norms that hamper women’s advancement, altogether influence the manner in which women continue to struggle in Kenya.

Gender parity concerns in Kenya have to be seen through the lenses of dialectical materialism. On my part, it is easy to live with the memory of Bukina Faso’s late President Thomas Sankara who quipped that “The importance of dialectical materialism lies in going beyond the inherent limits of biology, rejecting simplistic theories about our being slaves to the nature of our species, and, instead, placing facts in their social and economic context.”

In light of the historical and vital advice of the Chief Justice to the President of Kenya to dissolve Parliament, for failure to enact a law to operationalize the constitutional provision on two thirds gender rule.

Various petitions were filed with regard to failure by Parliament to enact enabling legislation for the operationalization of the gender rule. On record, the Speaker of the National Assembly Hon. JB Muturi and Speaker of the Senate Hon. Ken Lusaka filed preliminary objections, citing vital points of law that Articles 97 and 98 have set a ceiling on the composition of the two Houses of Parliament, it is impossible to enact legislation to give effect to the two-thirds gender rule without violating the citizens’ political rights to vote for candidates of their own choice and/or vie for any elective position in any public body or office.

The political hurdles intertwined with the legal challenge in the face of the CJ Maraga advice to the President for dissolution of Parliament makes things even more intriguing. The President could advice the AG to go to court for constitutional opinion and further interpretation. Uhuru Kenyatta may use the CJ’s advise as a powerful political tool for political expediency, but side-stepping the advice to dissolve Parliament will also portray the Executive arm of government as rogue and spitting at the rule of law. Is the IEBC (as presently constituted) ready to conduct elections for 337 parliamentary positions? Is President Kenyatta ready and willing to dissolve Parliament? I doubt.

Now that the Chief Justice has played his part, every other office/ institution must play their part too. Either the Attorney General approaches the court for interpretation of Article 262(7) and for weighting the political and legal implications of the possible dissolution of Parliament (it is the role of the courts to interpret constitutional provisions and statutes), or the President proceeds to do the needful. The choices are very stark.

Javas Bigambo works with Interthoughts Consulting.

CRITICAL REFLECTIONS ON THE TASK-FORCE REPORT OF THE BUILDING BRIDGES INITIATIVE, PROPOSING A RAFT OF CONSTITUTIONAL AND INSTITUTIONAL REFORMS FOR GOOD GOVERNANCE IN KENYA

27 Nov

By Javas Bigambo

Cocky demagoguery is eternally anathema to liberal democratic progress. Following the post-election handshake between Kenya’s President Uhuru Kenyatta and his erstwhile political nemesis Raila Odinga, the truce midwifed the Building Bridges Initiative, driven by a task-force, mandated to collect and collate public view founded on a nine-point agenda.

President Kenyatta receiving the Building Bridges Initiative report from task-force chairman Senator Yussuf Hajji at State House, Nairobi.

The political class has invited Kenyans for ‘free lunch’, through a very cockeyed idea wrapped in foil paper called Building Bridges Initiative (BBI) report, which advances bourgeois liberalism. Nothing really surprising by giving carrots to the rabbits.

The contraposing of the political class interests to national progress through witty propositions that sooth the proletariat by seeming to favour their interests is bewildering and epitomizes strategic self-seeking in a tottering democracy.

A proper functional democracy has the people at its center, not the politicians. It is the people who should drive reforms, and benefit from the same.

Prior to the embrace of the Constitution of Kenya 2010, the hue and cry in the choir of lamentations was that 20% of the document was not impressive, and would need revisiting in the quest of perfecting Kenya’s young democracy.

Nine years since the promulgation of Kenya’s Constitution which has billed as nearly the most progressive and liberal the world over, Kenya has continued to suffer the displeasures of age-old misfortunes, not for lack of legal and policy frameworks, but for merely incessantly dismantling national character contained in the political and social fabric.

The political sociology of the Kenyans is that every social and political problem can be fixed through legislation. Kenyans are tired of corruption – widespread blossoming graft. Kenyans are tired of politicians in the executive and legislature who are crooked and averse to being held to account.

Kenyans are eternally tired of institutions, whether constitutional or statutory, that are dysfunctional, and manipulated by the political class. Kenyans are tired of hollow values and tasteless public service work ethic.

Kenyans are totally tired of various Members of County Assemblies who willfully behave like unruly rascals that make no sense of the worth of public office and the attendant decorum desired of them.

Kenyans are tired of electoral injustices and politicians who think that they are God’s gift to democracy and must be in political offices and public spaces even when they have been rejected through choices made by way of suffrage.

Kenyans are uncompromisingly tired of political parties that purvey hooliganism and entrench electoral injustices witnessed during political party nominations, and party leaders who hand party nomination certificates to the highest bidders.

Kenyans are tired of the ghosts of historical injustices that the ruling class has stubbornly refused to address, regardless of colossal amounts of money having been used to make inquiry and come up with reports such as the Ndung’u Commission Land Report; the Kriegler Commission Report; the TJRC Report and such like.

Kenyans are tired of the whimsical yet worthless casuistry of politicians who say what they never believe in, engage in self-seeking political preservation maneuvers that further the interests of cartels and agents of mass economic stagnation.

Going by such dissatisfactions, it would have been prudent to have the BBI report make recommendations that touch on and open up the lives of ordinary citizens in a bold and spectacular way. Such would have included;

1. Proper and clear separation of powers in the arms of government.

2. Have cabinet secretaries as non politicians, and have them appear to parliament once every quarter and whenever an issue of public interest may arise to any ministry, at the behest of parliament.

3. Clear recommendations on the consequences to any person or institution, including government and even the executive in instances of contempt of court (disregard of court decisions).

4. The Attorney General; DPP; DCI and the EACC to be audited annually on successful prosecution of criminal cases, and performance contracts for holders of these offices to be pegged on successful prosecution of cases.

5. Guard against willful constriction of budgetary allocations to key institutions including the judiciary and constitutional commissions.

6. Punitive consequences for police officers who engage in extrajudicial executions.

7. Punitive consequences for police and investigation officers who bungle criminal and corruption cases.

8. Ensuring that every constitutional commission should do its work to the absolute satisfaction of Kenyans.

9. De-registration of political parties that engage in electoral violence directly through the incitement of political leaders or lawlessness of party supporters.

10. Make implementation of party manifestos mandatory to a political party that wins election at national and county level, and an audit of implementation of party manifestos to be done the office of the auditor general eight months before the general election. This is to guard against taking the electorate for a ride.

11. Grant a period of one month to adjudicate presidential petition after the first election and 14 days in case of a repeat presidential election.

12. Electronic voting system and the chair of IEBC and all commissioners to bear all responsibility of any institutional malpractices, and bear personal responsibility at a personal level with regard to costs of law suits upon indictment and sentencing by a competent court of law.

13. Any public servant culpable or charged with corruption to be barred from seeking political office for a period of ten years on account of Chapter Six of the Constitution on leadership and integrity.

14. Make it mandatory that every person holding public and elective office must necessarily have irrefutable and ascertainable University education. Education must not only be considered as a right, it should be highly regarded and be given its pride of place at all levels of public office and service.

15. Fully implement/ enforce justice Mumbi Ngugi’s ruling in the Criminal Revision No. 25 of 2019 in Moses K. Lenolkula vs DPP (following R vs. Moses Lenolkulal and 13 others), forbidding governors and any elected official or public servant from accessing their offices or executing their mandate pending the determination of charges facing them before courts of law.

16. Guard against high spending in elections by make clear recommendations on campaign financing and filing returns in individual and party campaign expenditure, which is to be verified through independent audit by the office of the auditor general.

17. Criminalize gender gender violence during elections and bar perpetrators from seeking elections in the said election if found guilty.

18. Every public office to have 50% gender balance.

19. All county government and national government offices including parastatals to have and fully enforce 50% gender balance.

20. County governments to fully implement the County Integrated Development Plans, and each county/ governor to be audited on implementation of the CIDP for 90% execution eight months before the general election. Lack of 80% implementation to lead to exclusion from the successive one election.

21. National government to be compelled to implement every taskforce report and every report from commissions of inquiry, to avoid wastage of public funds.

22. All contractors to finish allocated/ awarded projects within the stipulated time, and any delays to incur 15% penalty of the project cost.

23. Every SME and start-up to pay 10% tax and 15% corporate tax after 5 years of operation.

24. Banks to exercise 6 months’ leniency/ grace period before auctioning property of persons below the age of 35 in cases of non-performing loans.

Such would have been earth shuttering recommendations with direct implication not just on democracy but in the ordinary lives of Kenyans. Put rather plainly, there is nothing really cryptic about redesigning seats in a tumbling ship such as has been recommended at present by the BBI taskforce.

As the BBI report is released for public discourse, these proposals remain sound. The ruling class must come alive that the games of musical chairs must come to an end. There is no more music. If the flames of hope must be stoked, the crucible of truth and true public interest must be lifted.

Javas Bigambo and KTN’s Aby Agina after in-depth live discussions on the implications and significance of the BBI report after it was presented to the President and Hon. Raila Odinga.

A critical look at the BBI task-force team, I am beside myself wondering why politicians had to constitute that team. After public national dialogue, if a review has to be done, let no sitting politician make the team.

The BBI Task-Force team joining President Kenyatta and Former Prime Minister Raila Odinga at State House Nairobi after presenting the BBI report.

The writer is a governance consultant with Interthoughts Consulting.

DOES THE CONSTITUTION OF KENYA 2010 FULLY SECURE THE RIGHT TO PRIVACY?

21 May

By Javas Bigambo

Appreciating constitutionalism in the modern democratic times, the Bill of Rights in Kenya’s Constitution of Kenya 2010 provides a slate of fundamental protections and safeguards for human rights, and one among them is the right to privacy, domiciled in Article 31 of the said Constitution, and it is predicated on fundamental postulates of liberties that are inherently human, which finds a home in the natural law school of thought.

This paper jurisprudentially delves into the right to privacy discourse.

Privacy refers to “The right of an individual (or corporation) to withhold himself and his property from public scrutiny, if he so chooses. It is said to exist only so far as its assertion is consistent with law or public policy, and in a proper case equity will interfere, if there is no remedy at law, to prevent an injury threatened by the invasion of, or infringement upon, this right from motives of curiosity, gain, or malice.”

The Black’s Law Dictionary 6th Edition defines right to privacy has ‘the right to be let alone and the right of a person to be free from unwarranted publicity’.

This right does not find its primacy in the Constitution of Kenya alone, it is tethered to other unrivalled and equally vital legal instruments of international origin and acclaim, such as the Universal Declaration on Human Rights (UDHR) and the International Convention on Civil and Political Rights (ICCPR) and Article 7 of the European Union Charter.

It is instructive to note that Article 12 of the UDHR globally provides the primary foundation for the right to privacy, as well as Article 17 of the ICCPR.

Specifically, Article 12 of the UDHR provides that;
“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

This provides a secure global intention and agenda for the comity of nations to take the right to privacy seriously.

Javas Bigambo: Kenyans need to emphatically speak out and demand more from the state on enhancement of privacy and data protection.

To bolster this argument, in Digital Rights Ireland and Seitlinger and Others, the ECJ determined that ‘The retention of data for the purpose of possible access to them by the competent national authorities, directly and specifically affects private life and, consequently, the rights guaranteed by Art. 7 of the EU Charter.’ This went the whole mile of demonstrating the significance of personal data, which is a primary facet of privacy.

In Kenya, data protection issues are a major concern with new pieces of legislation. The laws must be cognisant of the fact that processing of personal data shall be done with the consent of the data subject…right from collection, processing, storage and transmission of personal data, it should be lawful and secure.

In line with the new huduma number registration process, Kenyans have a right not only to demand and to know how secure their data is, and the extent to which any person can access it.

Huduma Namba sample card.

There is so much surveillance in Kenya. For example, the Kenyan Police Service has surveillance powers, established in the National Police Service Act (2011) and the National Police Service Commission Act 2011.

In March 2012, the telecommunications industry regulator, the then-Communications Commission of Kenya (CCK, the precursor to the Communications Authority), announced that it was setting up a system to allow the authorities to monitor incoming and outgoing digital communications.

The right to privacy is a legal issue whose infringement easily attracts a lawsuit hinged on tortious liability. It is an important legal concept in the Constitution of Kenya 2010, as well as within the law of torts in commonwealth jurisprudence. While this view can be rejected a priori, legal, theoretical and contextual issues provide various arguments, which this paper discusses in detail in subsequent sections.

To further entrench and protect the Bill of Rights, the Constitution through Article 22 asserts that “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.”

Globally, for ages, privacy has remained a sensitive issue of human concern. In Griswold v Connecticut where the court invalidated a law prohibiting the use of contraceptives, even by married persons, Justice William O. Douglas opined that “there is a zone of privacy within a “penumbra” created by fundamental constitutional guarantees, including the First, Fourth, and Fifth amendments”.

Affirmatively, the classical case of Roe v Wade in 1972 recognized “right to privacy as fundamental, and required that any governmental infringement of that right to be justified by a compelling state interest”. Thus, the right to privacy has its limits, but the limits are to be executed within the margins of law.

The fact the the Constitution of Kenya provides for the right to privacy, by and of itself, provides a critical basis for centrality and sanctity of privacy law. But it offends that broader protection when an avalanche of legislations puncture that protection through such laws as mentioned inhere above.

But the fact that a right is enshrined in the Bill of Rights and protected by the Constitution of Kenya does not make that right absolute. This is true. But human privacy requires more reasonable protection without sneaky circumvention by the state.

Each right has got corresponding obligations and principal limitations which are also provided for by law, though Article 25 of the Constitution of Kenya enumerates certain rights and freedoms that may not be limited. Such rights and freedoms that may not be limited include right to fair trial; right to an order of habeas corpus; freedom from torture and cruel, inhuman or degrading treatment or punishment, and freedom from slavery or servitude.

Key Issues on the Right to Privacy
The ideological and foundational premise of the right to privacy globally and constitutionally, intrinsically aims at limiting state power and authoritarian intrusion into the lives of citizens within human societies, or an exposition of private information or infringement of personal spaces devoid of due process to the chagrin of humans.

It is aimed at building and strengthening the pillars of individual respect and firming up of reputational spaces and management, safeguarding personal social and political spaces, and enabling individuals to own their spaces, feel protected and indebted to the law, and not the mercies of the state.

This is informed by the fact that over generations of recorded political history in human affairs, authoritarian regimes have manipulated the law to subdue individuals through mass surveillance and using individual data to root out dissent, limit citizens’ freedoms and manage political interests for state exploitation.

It is therefore fitting and reasonable to arrive at the position that the right to privacy can be positively and negatively construed. The positive view of the right to privacy revolves around the necessity of the state to facilitate individuals by protecting personal spaces, and putting in place legislative, nay legal frameworks that protect individual spaces, which safeguards their integrity, be it social, economic or political.

The negative view of the right to privacy on the other hand revolves around persons being protected form unnecessary intrusion on aspects of their individual identity whether religious, sexual, whatever.

Protection of privacy thus connotes limitation of searches without regulatory frameworks such as search warrants being obtained by security officers before accessing people’s homes, offices among others.

The other fundamental springboard toward protecting right to privacy is accentuated by protection of personal data, and limitations to access of the said data for the benefit and security of the individual. This does not find proper protection in the Constitution of Kenya 2010. When the state or a state agency collects individuals’ data and preserves it at a central repository, access to such data should be protected and accessed only as permitted by strictness of law, to the requisite extent, without possibility of obvious violations.

Emerging Challenges to Right to Privacy as Public Policy Concerns
In the expeditiously globalizing digital world, the other crucial facet of privacy is digital privacy. The internet era provides various internet platforms and spaces where personal data is collected or can be mined for use other than the initially intended purpose.

The inescapable global flow of information for counterterrorism, law enforcement, trade, travel has greatly threatened the right to privacy.
In Kenya, the argument can be propounded that the right to privacy is counter-punched by the right to access information as provided for by the Constitution.

It is therefore not trite to state that right to privacy is not just a constitutional and legal concern, it is also strongly a public policy issue of momentous interest.

In Kenya, the right to privacy can be constitutionally defended, because it is constitutionally protected. But the existing and unavoidable rivulets of limitations drain out the whole strength of protection, leaving the protected right a mere shell of its intended purpose.

Privacy: The State is taking every step and every measure to increase surveillance on the masses in every aspect.

This argument is predicated on protection of state security the tough late-blooming argument in favour of global war against terror.

In Kenya, the important case of Bloggers Association of Kenya V AG, 2018, directed the spotlight on 26 sections of the Computer Misuse and Cyber Crimes Act of 2018, against which the petitioners lamented the extent to which sections of the Act infringe, deny and greatly threaten freedom of expression, media and person besides the right to privacy, property and fair hearing, all of which are domiciled in the Bill of Rights, and contrary to Article 24 of the Constitution of Kenya 2010.

The bloggers held that existing legislation already provided for violations against which the new Act seemed to cater for, such as the Kenya Information Communication Act and the Penal Code and its regulations already criminalised several cybercrimes.

What was worse was the punitive punishments the Act provided. the crime of “fake publication” attracts a fine of 5 million Kenyan shillings or 10 years in prison. Unauthorised interference or interception of state protected computers attracts the longest sentence of 20 years.

The fears of the petitioners were that the act could be misused to censor free expression in the online space, and that directly contradicts the country’s Constitution.

While the new Act aimed at containing and hampering internet-based offences such as cyberbullying, hacking and spreading of fake news, it permeated the sacred grounds of right to privacy.
The Act shifts liability on to the victim or target of the cyber crime.

Of note was that the new Act offers a framework for the timely and effective detection, investigation and prosecution of computer crimes.

Such crimes include unauthorized access to or interference with computer systems by third parties; the distribution of child pornography and online harassment like bullying and stalking; and the production of fake publications. These were clear aspects of infringement and violations of fundamental rights guaranteed and protected by the Constitution of Kenya 2010.

The court, per Justice Chacha Mwita, issued conservatory orders suspending sections are: 5, 16, 17, 22, 23, 24, 27, 28, 29, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 48, 49, 50, 51, 52 & 53, against which the petitioners had approached the court.It is proper to underscore that at the intersection of protection of free expression and privacy altogether with state security concerns is the preservation of human dignity and a person’s free space and right to associate without the supervision of the state.

This can be seen through the lenses of the landmark decision that disallowed the Communications Authority of Kenya (CAK) from effecting a plan to oblige mobile service suppliers in Kenya to install the Device Management System (DMS), which would have heightened state surveillance of all persons in Kenya by monitoring all mobile phone interactions.

The CAK, if allowed, would have to accessed information on all the subscribers’ International Mobile Equipment Identity as well as international mobile subscriber identity, and this would have seriously thwarted the right to privacy of all mobile phone users in Kenya and their recipients.

With the benefit hindsight, Parliament appreciated the place of privacy in Kenya when it passed the the Prevention of Terrorism Act No 30 of 2012, because Section 36 of the Act provides that the police must obtain a warrant from the High Court before the security agents can conduct surveillance on any terror suspect.

In retrospect, as noted earlier, Article 31 of the Constitution of Kenya safeguards the right to privacy which includes the right not to have one’s person, home or property searched, possessions arbitrarily seized, information relating to family or private affairs, reinforced by Article 24 (3) of the Constitution of Kenya 2010, which necessitates that the one seeking to limit any fundamental right is duty bound justify such limitation.Section 15(1) of the Kenya Information and Communications (Consumer Protection) Regulations (2010), states that a licensee “shall not monitor, disclose or allow any person to monitor or disclose, the content of any information of any subscriber transmitted through the licensed systems by listening, tapping, storage, or other kinds of interception or surveillance of communications and related data”.

Through international lenses, there have been interesting juridical positions on presenting further debate that creates a conundrum around the right to privacy imbroglio. For in stance, in Olmstead v. United States, 1928, the Supreme Court held that wiretaps obtained without a warrant and used as evidence in courts of law were not in fact violations of the Fourth and Fifth Amendments. But in the same ruling, a lone dissenting opinion of Associate Justice Louis Brandeis held that privacy is in fact primarily an individual right.

Conclusion
From the understanding that an equilibrium must be struck or attained between the right to privacy and the state’s existential interests such as national security, it has seemed obvious that in Kenya, the government has adversely made steps to limit the right to privacy, guaranteeing the same only to the extent that state security and national interests are not curtailed by the enforcement of the said right.

Every Kenyan must care about their privacy, and demand to have it secured as contemplated by the unpretentious parchment that secures governance and God-given rights. 21st century Kenyans and global citizens must ask themselves “What is it that Rosa Parks knew that we don’t,” or we easily forget? This could be a passive way of exiling the Constitution.

To this end, by virtue of the incontestable fact that the constitutionally provided task suffers enforcement glaciation when the interests of the state are deemed at risk, the conclusion is that the Constitution of Kenya 2010 does not fully secure the right to privacy for Kenyans.

The writer has studied Political Science; Law (LLB); and Communication.

NEGOTIATING ELECTORAL JUSTICE IN KENYA THROUGH SYSTEMIC, SYSTEMATIC, LEGISLATIVE AND INSTITUTIONAL REFORMS FOR THE COMMON GOOD

30 Jul

By Javas Bigambo
(This article was originally published by the author in ELOG’s DARUBINI YA UCHAGUZI BULLETIN, No 4 June-August Issue).

Since Kenya’s founding upon Independence, the earnest quest for electoral integrity and electoral justice processes have incessantly remained elusive, though encouraging steps have periodically been made.

It is immutable trite law that electoral processes are the vital pillars in establishing the Hobbesian Social Contract between political leaders and citizens.

The primacy of that contractual process is guided by the fundamentals of unadulterated franchise as provided for and preserved by facilitative legislation that guides the election process, so as to establish an esteemed democracy where the majority have their way.

Javas Bigambo writes and speaks extensively on matters of Governance; Devolution; Elections; Law, and Communication.

An incisive look at the pre-election, election and post-election challenges that have dogged Kenya since the advent of multiparty democracy point to a stubborn refusal by powerful politicians from respecting the dictates of the rule of law.

It remains disturbing that despite major constitutional reforms that heralded the Constitution of Kenya 2010, which brought forth critical institutional reforms in the electoral process tethered to progressive election legislation, it is worrying that avoidable challenges abound. Such challenges relate to delayed voter or staggered voter registration processes due to insufficient biometric voter registration equipment; corruptible procurement processes of election materials; disputes and suspicions over printing of ballot papers; treating of voters during campaigns; lack of capacity in monitoring and prosecuting individuals and politicians engaging in election offenses; election-related violence; extra-judicial executions during election season; political threats aimed at intimidating security and judicial officers among a galaxy of other challenges.

These challenges spiral into disputed election outcomes; testing the limits of nationhood and at times fragmenting civic cultures that are otherwise supposed to be bolstered; and diminishing the perceptive capacity of the Independent Electoral and Boundaries Commission (IEBC) to conduct a free, verifiable, independent and fair election.

The Youth Factor in Elections
If Kenya’s democratic normative frameworks are intended to be enforced and realized as progressive and productive, the place of youth and women in the body politic has to be re-negotiated.

The youth can no longer be spectators or cheerful bystanders whose only significance is to be feted as town-criers, carriers of leaves and marginal composers of songs or seat-fillers within the political framework.

Beyond leadership roles that have to be taken up in political parties, campaign management and institutional management within government, the young people in Kenya really have to re-imagine their roles in the political process, and re-think their place at the frontiers of electoral processes, governance an political leadership.

It is no longer worthwhile to have young people wasted or to waste themselves as dis-engaged agitators who count for nothing.

Rising above the Challenges
What is undeniably needed is the urgency of constitutional commissions to claim their real independence which is preserved by the Constitution. The the IEBC and the Kenya National Commission on Human Rights (KNCHR) must of necessity be sufficiently funded.

Commissioners to these bodies should be competitively recruited, and political parties should respectfully stop interfering with the discharge of duties of the IEBC.

It would serve the ends of justice to have serious investigations of election offenses conducted during and after elections.

Political parties are the cog in the wheel of these challenges and solutions. Beyond internal mechanisms established by political parties to address such challenges, there is need for Kenya to put in place a body that monitors and reprimands political parties that cast a blind eye on election offenses or malpractices by their members and supporters.

All criminal offenses related to elections have to be tackled decisively and seriously within the provisions of the law.

The IEBC could also establish an electoral justice database that documents all persons investigated of election offenses, and those found culpable prosecuted and barred from presenting themselves to the electorate for election in two subsequent elections.

It is necessary to re-think our legislation, policy and monitoring of campaign financing and expenditure by each politician and each political party, with proper reporting within specified times. As it is presently, the regulations on campaign financing presently in place are anything but useful.

Kenya must work to have in place an election management system that is not open to manipulation.

To the extent that there will be incessant systematic and systemic failure to extirpate electoral injustice, there will be perpetual worthless casuistry of electoral processes by the government of the day or subsequent ones that will germinate from such injustices, and the appropriateness of a social contract between the people and the political establishment will invariably be dishonoured.

The writer is a Governance and Communication Expert at Interthoughts Consulting, and the Chair of the Board of Directors at Youth Agenda.
2018

KENYA’S NEXT PRESIDENT: WHY HISTORY HOLDS THE ANSWER

30 Jun

Javas Bigambo

Kenya’s political terrain is jagged and tough, and that is not going to adjust in the foreseeable future, given certain variables that remain constant. The sword of Damocles keeps hanging above the heads of many, and many candidates get guillotined by the uncompromising interests of power players.

History is a powerful lens through which certain future prognoses can be made. In politics success can be slippery, and compromise can be at times costly, and at other times handsomely beneficial.

There is this small magnetic issue of serving as President of Kenya. From Kenya’s founding, historical realities depict one hard fact – Presidents in Kenya are made. No one makes himself President. Listen to wise voices.

The best one can do is to build their profile, keep tightly close to the powers, coyly magnify your wisdom, without bringing out Caesar’s insolent ambition, which caused him his life. Jomo Kenyatta was made President by Jaramogi’s charitable confidence. Moi never made himself President, he was made. Kibaki never made himself President, Raila’s declaration wrapped it. Uhuru never made himself President, in fact he was most disinclined. Audacious ambition has its place. To all persons eyeing that glorious seat, avoid Caesar’s fate.

Learn from the Crocodile, it never roars, but it is tactful, swift and an encounter with it assures fatality – not its own but yours. Take no lesson from the Cheetah, its chase is optically exciting, but nothing much thereafter. Listen to me, then you will become President.

SHADOWS ON THE MOVE: RE-THINKING INTERVENTIONS FOR OVERCOMING DYNAMICS OF YOUTH UNEMPLOYMENT AND OTHER CHALLENGES

11 Jun

By Javas Bigambo

Each side you turn your head in every city, town or village in Kenya, you are bound to be met with sad faces of youth in a hodge-podge of misfortune ranging from growing unemployment, substance use and abuse, irresponsible sexual behavior, struggling SMEs with nose-diving profits, self-help groups with limited support, and generally a canopy of young men and women wallowing in self pity.

Javas Bigambo:What is sadly true is that most young people in Kenya are simply shadows in the movement of economic growth.

Each leader and community member should examine his of her conscience about what contribution they are making toward ameliorating the lives of young people in Kenya.

With the right support, mentorship, motivation and guidance, each young person has an unqualified chance to be successful and happy through hard work.

So far, many great initiatives have been rolled out by the government, youth organizations and development partners toward empowerment of the youth. The institutionalization of financial aide through Youth Enterprise Development Fund remains creditable, and progressive.

Nonetheless, ominous challenges still exist and great opportunities still await the too many frontiers of the youth in Kenya.

Youth leaders and organizations have to get impatient with the slow pace of empowerment and transformation among the youth, regardless of commendable efforts and programmes in the past 20 years. The goal of youth empowerment remains unreached, predictable challenges not surmounted, and legislation alone cannot be the dependable cure.

Unemployment; reviewing institutionalization of financial aide for the youth; support in venturing into and mastering entrepreneurship; understanding dynamics of and positioning themselves in political leadership; and responsible sexual behavior.

Urbanization also has accentuated and spiraled various kinds of evils and crimes. We cannot be demure about the scale of these challenges if we robustly intend to squelch them. From these perspectives, it is obvious that the nation is faced with moral, economic and academic challenges with regard to the challenges facing the youth.

Platforms such as AGPO (Access to Government Procurement Opportunities) are working fairly well, but the ultimate success points remain elusive, because far too many youth-owned companies remain stuck due to unpaid invoices from government agencies, as well as county and national governments.

More needs to be done in policy and programme-level interventions. There is need for expansion of urban and rural job opportunities, through robust infrastructure development, and a commitment to employ 50% of youth in all public funded projects, so as to narrow the variance between economic growth and employment generation in the public sector.

The government should provide more benefits too in tax relief for all private sector institutions that provide paid internships and also take up interns upon completion.

On the academic front, the national and county governments need to upscale interventions that enhance increased transition rates in educational institutions, to lend meaning to the constitutional provision of education being a right in Kenya.

For the youth who are already in gainful employment, stakeholders need to establish vigorous programmes that would boost the culture of saving money, and encourage investments.

The youth remain statistically significant. The sad part is that they are mainly looked at statistics, and their premium valued during election times. Report after report has been released by key sector players on youth matters and how palpable momentum can be built for fitting interventions.

All youth in Kenya, premised on the constitutional provision of non-discrimination on grounds of race, gender, ethnicity, or religion necessarily should have equal access to quality education and health care and the favourable economic and social opportunity to grow up in safer neighborhoods, communities and counties, in pursuit of happiness.

The East African Community, with the cooperation and help of the Ministry of Public Service, Youth and Gender, the ministry of East African Community and the Ministry of Foreign Affairs, need to establish a strong mechanism and cross-border interventions to help the youth overcome their economic woes.

Continentally, the African Union should revisit, and audit the Africa Youth Charter endorsed by the 2006 Heads of State Summit, and renew obligations of nation-states to the letter and spirit of the that Charter.

As a country, Kenya must look to long years ahead of challenges for the youth, unless there is expeditious multi-stakeholders’ synergy building and interventions on the multi-faceted woes bedeviling youth in Kenya. What is sadly true is that most young people in Kenya are simply shadows in the movement of economic growth.

The writer is the Chair of the Youth Agenda Board of Directors.

BEYOND ELECTIONS: STRAINED NATIONHOOD AND REFLECTIONS ON ELECTORAL DEMOCRACY IN KENYA

21 Nov

By Javas Bigambo

Every election is essentially a battle cry, driven by convictions of candidates and their supporters, informed by fundamental principles that men and women of our nation-family lost lives to have them founded, and must be inevitably sustained by individual and collective sacrifices.

The contours and margins of democracy are formed by the imagination, push, commitment and diligence of citizens, and Kenyans, beyond any precept or example of any other country on the African continent keep proving that they know who they are. What if the Greeks would have this country for their own?

Following the repeat presidential election, the Supreme Court has rendered its verdict today, laying to rest officially the hard-fought contest for presidency, a duel wrestled by political notables in the ballot and the courts. With that judgment comes not unity, harmony, brotherhood or spirit-lifting progress.

Kenyan Supreme Court judges, from left to right, Njoki Ndung’u, Jackton Ojwang, Deputy Chief Justice Philomela Mwilu, Chief Justice David Maraga, Smokin Wanjala and Isaac Lenaola preside over the hearing of the petitions. The court upheld President Kenyatta’s re-election.

What is undebatable is that detailed recorded fact point to the reality that the 2017 general election was in many observable cases virulently fraudulent, scandalous, disturbingly opaque and divisive, tribal and threatened the very foundations of our stability and nationhood.

But we had to get over the 2017 election all the same, whichever way it had to come. This does not mean that the many anomalies noted in the election process should be pushed to the backwaters till the next general election.

The malpractices that took place in the 2017 general election sullied our democracy, and amounts to spitting on the faces of the fathers of democracy here in Kenya and all over the world. In justice lies safety. It must be our collective national realization that democracy is not a delusion, and should not be made to be that aberration.

So it must be necessary that independent investigations should be conducted on how the the electoral process at the IEBC was managed, and critical recommendations to remedy those errors effected, followed by charged being pressed against any persons found culpable.

Questions of electoral injustices are not small or of private or individual interests. They are universal in effect and interest. The cause of free, fair and veritable elections is the cause of human liberty.

Therefore, following the nullification of the August 8th 2017 Presidential Election, as well as the repeat presidential election and its determination by the Supreme Court, so much remains politically unresolved. There is still so much pain in many parts of the country.

The post-election incidences have also demonstrated that there is need for more reforms in the Police Service. Such reforms should be focused on police training, and how police should interact with or manage public spaces and demonstrations at all times.

The police need to embrace a rights-based approach in handling protesters.

There are people who lost lives, and some lost loved ones following disputes and protests related to the election outcome. To them, closure did not come with the Supreme Court verdict that upheld the re-election of President Kenyatta.

There are those whose property was destroyed or looted, hence lost earnings and sources of livelihood following post-election protests. They cannot find closure just because the court has closed the matter.

It is for this reason that I am not indifferent to the opinion of those uncharmed by the decision of the Supreme Court to uphold the re-election of President Kenyatta. Neither am I enthused entirely by the inconsiderate celebration of those tickled by the affirmation of the court.

What is vital is how we must begin building bridges, and refuse to build political walls. Now then, whatever measures conciliatory that are needed, let friends and foes pursue that. We cannot afford to be slaves of hopelessness, and by so doing neuter a young democracy.

President Kenyatta has a duty, so unique and solemn to bind the open political wounds in the country. I know not how his second inaugural speech will be written or how it will read, but how that speech will be weaved will be the starting point of lifting the spirit of the nation.

The Supreme Court upheld the re-election of President Uhuru Kenyatta by disallowing the two petitions challenging his re-election for lack of merit.

The Hon. Raila Odinga has a critical role to play too in the healing process. Being sworn as president in a recalcitrant act will not at all assuage the pain of his supporters. In any case, it will be out rightly unconstitutional.

NASA leader Raila Odinga (center), withdrew from the repeat presidential election on grounds of unmet reforms in the electoral process. Mr. Odinga is critical in the necessary effort to reduce political temperatures and restoration of normalcy in the country.

We are all a part of what we have witnessed and experienced. So there is so much to be done in an effort to move Kenya forward. Is it not true that Milk and honey have different colors, but they share the same house peacefully? Then let us remember that we are one nation, and Kenya is our country.

I must bring myself to the appreciation that here in our land, I know no law higher than the Constitution, and thus, obligated to respect it as it provides, till such time that we shall, collectively, elect to amend sections of it.

The Media and Safety of Journalists

The press and television journalists need to operate within boundaries of decency, responsibility, compassion founded on conscientious professionalism, not sensationalism.

Journalists on the other hand need not be threatened or to operate in an environment where their security is threatened or compromised. We should have outgrown the age of press censorship, the fancy of absolute rulers, dictators and fear-ridden office holders who suffer insecurities of public scrutiny. Media censorship portends the decline of liberal democracy, which must be guarded against.

Media freedom, without doubt, is an inherent and unassailable element of liberal democracy, that facilitates part of the right of information essential in holding state and public officers accountable.

Similarly, integrity in the practice of journalism must also be demanded of journalists by citizens and leaders, so that news content should not be sought or twisted at the bidding of special interest groups, but for the greater good as a general principle.

Building an Accountable and Democratic Kenya Together

The shadow of patience must not grow shorter. Need we entertain the imagination of secession and the attendant untamed savages of individualism that come with it? Let secession remain a mirage, or at best, an apparition that we live not to experience.

We cannot take pride in divisions. We cannot for so long sustain the negative energy, abhorrence and squabbling. It is obvious that there are critical social justice matters, land matters and electoral reform issues that must be undertaken. This work is ours as a people.

There is an understanding in African tradition that brothers love each other when they are equally rich. We have to make sure that we overcome the high inequality in Kenya, breath life in our national values, boost entrepreneurship and business environment, facilitate sustainable agriculture and put more money in devolved government as we put premium on accountability.

There are many pillars of nationhood. Many of those pillars are not strong here in Kenya. Let us not ask of anyone, politician or foreigner to strengthen them. We the people have to rise, fold our sleeves and strengthen those pillars.

Javas Bigambo: Not all is ok in the country. There is need to build a new Kenya through critical reforms and abiding by the rule of law.

Greater sense must reign among Members of Parliament and Members of County Assemblies to work toward better reforms through pieces of legislation and debates in the house.

Let us elevate our thoughts, moderate our excitement; contain our anger, and fathom that ours is a country to secure, a nation to unite and saunter into the future, thankful that we have it in our power to strengthen our national home. That effort of building a truly new Kenya should start right now.

The writer can be reached through jbigambo@interthoughts.co.ke

KENYAN POLITICS: CYNICISM, INVERTED OPTIMISM AND THE LONGING FOR REAL CHANGE

24 Jul

By Javas Bigambo

Kenya’s general election always fascinates, confounds, stirs and also dissuades most right-thinking observers in a manner that no other country in Africa is capable of doing.

Kenyan Flag: Election times always test our nationhood since independence.

During the peak of each election cycle, the electorate is dazzled with buzzwords of change and associated fantasies, moralist speechifying at campaign rallies against the backdrop of forgotten national and individual histories, and true to their nature, politicians celebrate public ignorance and amnesia like horses consume hay during the drought season.

Seventeen years since the turn of the century, Kenya’s politics is still wretchedly crippled by the vicious pains of tribalism, deplorable plunder and extensive wastage of public resources, favouritism in party primaries and nomination to parliament and county assemblies, reversed wisdom in campaign arguments, and guileful ploys to thwart accountability.

The 2017 election scarcely provides new options or new ideas. What is at play is a battle of craftiness between Jubilee Party and NASA coalition. They are using templates initially used in the 2013 and 20017 elections.

The creepy pursuit of populism and diabolical twists and turns in fleeting accusations and counter-accusations in the political playfield among politicians and political parties, bereft of ideology that must have died soon after the struggle for Kenya’s independence is evident in the lack of requisite ideological drive instrumental for constructive politics.

Javas Bigambo:There is no debate about the need for conscientious debate, and the only debate is about why it is not debatable that we are divided as a nation.

Examining and analyzing all the manifestos presented to voters during the campaign period goes further to depict how not-so-far-apart the political groups are. There are no hard positions on interventions that would create sharp differences to distinguish what each party would offer.

No, I am not pouring cold water on the efforts made by technocrats who penned the manifestos. The trouble is that what the technocrats believe in is not exactly what the political class believes in.

Kenyans are pained by the heightening levels of graft, cronyism, nepotism, flouting of procurement laws and guidelines, disregard for national values domiciled in the Constitution, and thirst for quick riches is the bane of our politics.

Majority of rural populations have refused to interrogate critical issues by examining hard-content with critical depth that would shame the spookiness of the political class.

There has been no critical and sustained insistence by the electorate to have Look at political parties castigate any governor under their party umbrella for misappropriation and plunder of devolved funds.

Look at how no political party is emphasising how local development is going to be exemplified by devolved government, and how they would upscale the oversight roles of County Assemblies to strengthen accountability and oversight at county level.

Look at how no one is immersed in discussing the need to strengthen social audits as a mechanism for enhancing public participation at the two levels of government.

No party is discussing the necessary boost that the Council of Governors needs so as to strengthen direct foreign investment to counties and strengthening of Public Private Partnerships for county governments.

See how no party is discussing the possible and necessary improvements needed to make the Summit and the Intergovernmental Budget and Economic Council more functional, platforms that most Kenyans know little about, and platforms that have left so much to be desired.

The cost of healthcare continues to be unbearable, health and economic welfare insurance remains slippery, and a preserve of the rich, and sustainable development seems to be a good fairytale.

The politicians are obviously on top of their game, and the pliably oblivious electorate is cheering the politicians on and on.

Kenya needs a new awakening. The prisoners of conscience and tolerance must take to the stage and upstage the grandstanding of the status quo, and drive out the agents of political intolerance.

In the 2017 election cycle, the second cycle since the advent of devolution, the only change that is evident is how politicians are deploying technology to throw mud at opponents, and lack of clarity to specific commitments once elected into public office. It is the Kenyans who stand to lose.

Disturbingly, the gushing wound of tribalism and regionalism is what politicians, the self-appointed doctors, have purposefully refused to treat, and are ready to pop the Champaign bottles at the death of the patient, thanks to the wound.

There is no debate about the need for conscientious debate, and the only debate is about why it is not debatable that we are divided as a nation.

The best description of the Kenyan situation is captured by the Irish poet W. B. Yeats in his timeless poem titled The Second Coming, and he states;

Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.

An election is supposed to symbolize the light at the end of the tunnel. Sadly, in Kenya, there is no tunnel, and no light. There is no rock bottom that beats having many political leaders with observable conceptual gaps in governance and development.

Political office holders are deemed to be public trustees whose task primarily is to oversee and manage whatever resources entrusted to them as apportioned by the Constitution, and are charitably expected to be do-gooders incapable of pursuing the dusty path of seeking self aggrandizement and personal wealth at the expense of public service.

New levels of political cynicism and idiocy, and class conspiracies continue to be mainstreamed in the Kenyan politics, without foreseeable prospects of clean politics. The brutal tribalism, duplicitous intolerance, and crafty responses to public concerns seem to be the lasting fiber in our body politik.

The voters are admittedly comfortable to choose between degrees of evil. It is like jumping from one hole to the other of similar depth, and imagining that you are kissing the sky.

As we head to the ballot on August 8th 2017, many of us are overwhelmed by the emptiness of many politicians, and as we gasp for air, we are nearly asking for oxygen masks.

Javas Bigambo can be reached through jbigambo@interthoughts.co.ke

ELECTION PREPAREDNESS: THREATS AND RISKS FROM LEGITIMATE POLITICAL COMPETITION

6 May

By Javas Bigambo

Kenya is yet again headed to another general election, whose stakes are evidently high, and political daggers are already drawn. Among the many questions arising is whether we are well prepared for the general election.

Proper election preparedness is crucial in the advancement of democracy. Political parties as institutions, aided by vibrant and objective civil society, advancing idealpolitik and realpolitik, contribute to the blossoming of democracy.

Political and public institutions aligned to politics are the aorta of democracy, whose backbone is the rule of law.

As Abraham Lincoln easily paused in his pivotal address at the Young Men’s Lyceum of Springfield, “What has this to do with the perpetuation of our political institutions?”

Political institutions are the wheels on which democracy runs. Democracy, like freedom, must always be chosen, and sustained by the resolve of a nation.

Democracy is a critical precursor to fundamental freedoms in any free society.

By it’s nature, democracy prioritises the sanctity of the vote, and guarantees the right of that vote, not just to be cast, but to be counted with regard to the intention of the voter.

Proper preparedness for election broadens bolsters not only democracy, but speaks to the soundness of the perpetuation of political institutions.

Already political mobilisation is at an advanced stage. Opposition Coalition NASA has finally determined its direction by settling on Raila Odinga as its flag-bearer.

National Super Alliance (NASA) has settled on Raila Odinga as its presidential flag-bearer. Mr. Odinga is Jubilee’s fiercest critic.

Jubilee Party on its part is looking to battle it out once more with one of its fiercest critics that Raila Odinga is.

President Kenyatta and Deputy President William Ruto have dismissed NASA and Raila Odinga, terming NASA as a “coalition of jobs for the boys”.

But is the country ready for elections?

Here in Kenya, it would be erroneous to assume that election preparedness is the primary and sole task of the Independent Electoral and Boundaries Commission (IEBC).

It would be altogether pernicious to the dictates of democracy’s growth, to leave much of election preparedness to the IEBC.

Successful, credible, verifiable and transparent elections increasingly depend on the collective efforts of key stakeholders, a team that constitutes the principal institution planning and overseeing the elections (IEBC), the judiciary, political parties, civil society, relevant commissions such as the National Cohesion Integration Commission (NCIC), the Kenya National Commission on Human Rights (KNCHR), the media, and the participation of the general public.

IEBC Chairman Wafula Chebukati and CEO Ezron Cheloba at a recent press briefing on election preparedness.

It can no more be negated that Kenya’s growing democracy is a patchwork of a nation’s resilience, vigilance, steadfastness and diligence in political actions. Each country has its unique path to democracy.

While the key principles of democracy are universal, the flesh that covers the bones that those principles remain different, unique, and of different shades and hues.

When one mulls over electioneering trends and practices, question arises as to whether the challenge in Kenya’s democracy is the weaker political institutions, the tetchy politicians or the people.

When the dotes are connected, some don’t still realise that when unions demand salary increases for workers, government raises the money through increase in taxes, which directly affects the cost of living.

When corruption goes unpunished, white elephant projects become the norm, standard projects become unreasonably high, the exchequer pays even more for the same projects, and the nefarious, unscrupulous public servants, working in cahoots with service providers, milk public coffers dry, and a bad culture is sustained through the fame of emboldened corrupt individuals who are celebrated as wealthy.

Lawless spirits always beget lawless public servants and lawless business people.

When tribalism and political tribal blocks are hailed as cryptic political arithmetic that wins political office, the smaller ethnic groups gather in the cold corners of minority positioning, and end up having their voices drowned in the sea of national politics.

When greedy business men and women become the trusted advisors to the holders of public office, roper service delivery is threatened, and accountability is eschewed.

These are things that choke a nation, threaten development, and create darkness at high noon.

As we head to the 2017 general election, political tension is at the heart of its preparation.

Each side is suspecting the other, and one would be forgiven to conclude that each side seems to be sounding the drumbeats of war.

Assumptions and presuppositions, accusations and counter-accusations, suspicion upon suspicion, and ego against ego, no side is resting easy.

What makes our elections replete with violence is ostensibly the lack of fresh ideas from the political class, who continually cling on tribal affiliations, and a population too that does not demand political leadership that can re-invent itself with ideas, not wealth and egos.

It does not seem to concern many Kenyans that no side in this divide has come up with ideas on how to combat climate change; a new strategy to counter AIDS; a puzzling idea on how to make famine a thing of the past; how to sort out the healthcare mess; how to ultimately deal a blow to corrupt public servants (by the way, majority of the party stalwarts on each side have benefitted from or abated corruption); how to reduce the cost of monthly electricity bills; or perhaps how to make business and employment opportunities available to everyone equally.

Instead, each side is nippy to demonize the other, and spewing epithets that make no sense for public good and progress.

What’s even more troubling is that those with ideas are seen as ‘academic’, statements made to possibly declare that being academic is not cool, yet education is declared a right by the Constitution.

Overwhelming evidence shows that democracy itself is a product of education and academics.

While by each election the state of our democracy seems to be growing stronger, the calibrations of such growth are known by the marks of strife, deaths, injuries, violence, compromises, sacrifice, reforms, and resilience. A whole catalogue of pains, sorrows, joys and forward-falling.

With all these, at no time can we say that we were very well prepared for the general election, even those times when we really thought we were, the contested election results, especially at the presidential level, have always brought out one reality – that we have never been satisfactorily prepared.

All political and media spaces need to be used to make the atmosphere conducive for a cohesive nation, especially as we move toward the 2017 general election.

The media should play a crucial role in this direction. Political analysts appearing on television and radio should be men and women of solid ideas and objective enough to strengthen public discourse toward a stronger democracy.

Javas Bigambo: Analysts appearing on television and radio should have solid ideas and be objective enough to strengthen public discourse toward a stronger democracy.

his is the kind of confidence that IEBC, the judiciary and all political parties must build.

The opposition coalition (National Super Alliance – NASA) on its part must not keep chastising the IEBC and incessantly viewing it through the lenses of suspicion.

The government too should act in such manner that a demonstration of possible mischief is not construed.

Only then can we aver that we are genuinely, collectively and diligently preparing for elections, regardless of heightening political competition.

Free and fair elections are a function of adequate financing and proper preparation, which makes democracy possible.

Democracy has no perfection, it is always work in progress, an inheritance across generations.

The writer can be reached through jbigambo@interthoughts.co.ke