Open Letter to Chief Justice Emeritus David K. Maraga

4 Jun

Dear Hon. Maraga, Retired Chief Justice of Kenya,

I’m sure this this letter will reach you at your Nakuru home, because just the other day I read in the dailies that the Directorate of Immigration has inked a cooperation agreement with Kenya Posta, to be delivering people’s passports to their houses, they will not refuse to bring this one, I hope.

As you enjoy your retirement, I know you follow the news, either on TV or on radio. Your retirement was a big thing, it was all over the news, and some people were happy that age had caught up with you while they are still active, quite agile like the colobus monkey in the Coastal forests of Kenya.

They replaced you. It was global news. It is a lady who was given the job. Such jobs, I’m told, have a way of eluding ladies, and history has it that she is the first one to occupy such job in our Republic. I was happy too, not just for her, but for all women too. She has managed to punch through that glass ceiling, and soon the roof will be in trouble. I tell you, women in this town have not sat down since the day of her nomination. Her name is Justice Martha Koome. I’m sure you remember her.

She used to be in the Court of Appeal as a Judge, where you used to be before you became Chief Justice. Now she has occupied that big office that used to be your own before retirement age signed a deal with you. So women are still dancing. No, we are not worried if their muscles will ache or some legs will break. A few good doctors in town will fix whatever bones may break, and the masseurs will have something for their pockets too as they tenderly help those muscles to be restored back to factory settings.

There have been silent whispers across town, that maybe she may not be larger than life, that perhaps someone somewhere has put her in the pocket, or maybe in a bottle, already. These whispers are not good. To imagine that she is possibly tightly held in a bottle somewhere makes some of us desire to empty the contents of our urethra on ourselves. Our fear is whether these fears are real. Impartiality is a hard thing to have nowadays, I tell you. But no one has written her off yet. People are still hopeful because maybe she is still locating the keys to her office, that office that you protected with every organ you have.

The other day a passerby was having a monologue, quite a disconcerting soliloquy, wondering whether the new CJ will fully and ably protect the independence of the Judiciary, and by so doing protect the judges. The passerby has watched the new CJ bow to the President after she had been sworn in, and kept wondering whether that bowing was symbolic, symbolic of the possible genuflection to the Executive. So the passerby kept wondering whether the new CJ will be passerby in her office.

Do you remember the 40 judges whose appointment did not happen during your tenure, even after you fervently pushed for it and even lamented publicly to the nation through the media in that scorching sun? Do you? Thirty four of them have been gazetted. Six of them have been asked to go sit on a nail, possibly because their judgment pens are too bold and too independent to care. No one knows. The big man is the only one who knows. The President is loved by the people. They overwhelmingly voted for him. In fact, Kenyans are committed to finishing the journey with him. He has always been known to mean well, though his actions at times depict otherwise.

I read somewhere that the President is supposed to appoint nominees forwarded to him by the Judicial Service Commission. But he has decided to appoint some, and disappoint others. Do you think jubilee government is a chicken hatched from the egg of impunity?  I ask this because I know impunity is the scourge of democracy. Do you think it is possible for dynasties to die due to potentially weak heirs?

Tell me, when you finally read this letter, what made you that bold? During the JSC interviews when you were seeking that CJ job, you asked for a Bible, lifted it up and lifted it to the high heavens, declaring that you have never been bribed and that you never will. People thought you were joking. Then you rose each day, spoke passionately, but softly, about the need for a well-funded and totally independent Judiciary.

By the way, are there rotten potatoes in the Judiciary? Long ago there was a radical surgery that left the surgeon with injuries, though the patient had the oncogenic tumor removed.

I am told after your appointment most people had written you off. They said that you looked so soft life bread soaked in water. They said that due to slight mother tongue participation in your speech, you will not climb to the mountain top like that slain eloquent Baptist preacher from Atlanta Georgia, who eloquently proclaimed to the world during the civil rights struggle that he had a dream of an equal and harmonious American nation. By the time you left office, you had climbed the mountain top, and I hear that you are being looked at as a Saint, already.

Some people are worried that your successor may not be having a backbone, that her entire body is all fleshy fat, like a snail. I am sure they are underestimating her. I told them that she has got slight mother tongue participation in her speech too, just as you do. I reminded them that she looks quiet and harmless, just as you do. I reminded them too of the saying that if it looks like a duck, walks like a duck and quacks like a duck, then it is not a goose. Am I being too optimistic? Maybe she fits in your shoes. But no one knows. Just that her silence is giving people goose bumps. You see, you know her best. You worked with her. You are best placed to confirm to us.

Some people are worried that because at one time she was part of a bench that made a judgement at night, that she may have a preference of operating in the duck, like a bat. Bats are strange, you know, and scary. It is said that they have defied classification because they are neither birds nor animals. I have never examined one closely, but I agree with the aspect of strangeness.

I hope she won’t soil your legacy. People like you are hard to find, and equally hard to be celebrated by those in power. Recently, a famous trade unionist had a road named after him, and it is said he has employed 10 young men to guard the signage, to stop some activists from uprooting it, after initial such attempts were thwarted. Why wouldn’t such a road be named after you? But then, I think they would not want to remember you. Do you think I am wrong? Alright.

Very many Kenyans celebrate you, I hear. The mention of your name makes them jump high, with a desire to scratch the sky in excitement. But others consider you a conservative villain or a chief jurist with an overpowering appetite of rattling the President. Do you consider yourself an archetype of conservative jurisprudence? You and your predecessor Dr. Willy Mutunga remain interesting jurists. I will be glad if you send him this letter too. His reflections are welcome.

I hope you left a letter to your successor, just to encourage her. She is an honourable lady. She needs to be her own woman, and guard against intimidation or manipulation. She has got nine solid years before age hounds her out of office like it did to you.

To last for those 9 years in office will take quite some energy, controversy, independence and a spine. If not, she may just find herself out of the office before the cock crows three times. I am sure no citizen would like to think that having her in office as Chief Justice is an incurable miserable misfortune. That is why we are praying for – not to prefer light duties, but to grow a backbone, possibly one made of steel.

Kenyans want her to be strong, assertive, visibly bold, and to have regard for the other arms of government too. She must be the guardian of liberty and the foremost vanguard of the constitutional order. That is what Kenyans want to see. Are Kenyans demanding so much so soon? In other circumstances, caustic politics have a way of making the Judiciary and Parliament flexures of the Executive.

I thought I should write to you about these things. These thoughts of mine. I await your reply, through the Posta Kenya.

Yours Sincerely

Arafat, the Grandson of Samson.

Cohesive Nationhood Survives on Responsible Free Speech

13 Apr

(This article was first originally published on February 21, 2021 by The Africa Centre For Ideas and Dialogue Program (ACIDP).

By Javas Bigambo

Kenya’s political space is currently heating up with discussions on what has been framed as ‘dynasty – hustlers’ debate, being driven by political elites from opposing sides.

Potentially, this increasingly confrontational rhetoric may easily lead to either pre or post-election violence if not nipped in the bud early enough. If the memory of the 2007/2008 post-election vicious conflicts serves as a vital lesson, Kenya’s citizenry should be troubled by the divisive hustler-dynasty narrative’s scale-up.

Politically instigated violence is a threat to cohesion among communities that constitute the Kenyan nation. Therefore, it follows that cohesive nationhood survives on, among other things, the nutrients of responsible free speech. This informs and sustains nascent democracies whose fragility is only secured by a high regard for the rule of law.

Freedom of speech

The genealogy of mankind’s right to free expression can be traced back to heralds of modern civilisation. This era brought the entrenchment and propagation of salient principles and rights for humanity’s mutual coexistence.

Those rights are inherently human, predicated on shared values whose protection fosters mutual coexistence.

Among these rights is the freedom of speech. Undoubtedly, freedom of speech and expression is at the core of fundamental rights and freedoms for any democratic society such as Kenya.

As it is with other rights and freedoms, freedom of expression is protected by local judicial mechanisms and emphasised by hawk-eyed protection of independent states’ international assembly – the United Nations.

Over time, this right’s significance has been accentuated by being embedded in Constitutions, such as Kenya’s. Freedom of expression is enshrined in Article 33 of Kenya’s Constitution 2010, and includes the right to seek, receive, or impart information and ideas.

Curtailing of free speech?

Yet, regardless of how sacrosanct it is, this right has been subjected to various forms of censorship, restrictions on access, and violent acts directed against those whose views or inquiries are seen as somehow dangerous or iniquitous.

The strictures of statutory law in the interests of war on terror and national security, compounded by the lack of a clear definition of hate speech, have given much latitude for limiting freedom of expression. Further, Kenya’s penal code criminalises incitement and frowns upon it as an enabler of violence and contrary to the law’s aspiration. 

The Computer Misuse and Cybercrimes Act, 2018, passed in May 2018, further threateningly restricts online freedom of expression by imposing penalties of up to 10 years imprisonment for the publication of “false” or “fictitious” information that results in “panic” or is “likely to discredit the reputation of a person.

So, freedom of speech and expression protection and guidelines are properly domiciled in Kenya’s corpus juris.

From its founding, Kenya’s democratic trajectory has continually been shaped by explorations of the freedom of speech and expression, and the various liberal uses of the same mostly enabled by ethnocentric paradigms.

Incitement versus freedom of speech

Kenya’s political sphere is dominated by ethnocentric gatekeeping, where ethnic groups are merely seen as voting blocks for political harvesting by leading politicians.

Kenya’s most ethnically demarcated regions are seen as political protectorates, jealously guarded by the regions’ political kingpins, who lose their minds whenever other prominent political leaders are seen to be making inroads.

It is for protecting political turfs or fighting for political survival and interests that politicians and their support bases find themselves on the incitement trajectory.

There seems to be a very thin line between freedom of expression and incitement. However, those who support incitement are responsible for this situation.

Ordinarily, incitement is translated as the intentional and reckless remarks aimed at stirring up and whipping people’s emotions along a sensational subject matter such as property ownership, ethnic regrouping, political identity or any matter through which one antagonises a group against another.

Inciting remarks are dishonest, untruthful, and irresponsible. They are founded on ethnocentric biases or ulterior political motives as Kenya’s political history reveals. 

A cycle of entertaining incitersh out

Every electioneering period in Kenya is always filled with publicised remarks from politicians, which are sometimes construed as incendiary.

The fodder for political incitement in Kenya is the fertile ground mostly of naïve minds that include individuals from informal settlements and rural folks who wallow in the miasma of high illiteracy levels. The ignorance and misinformation of targeted groups for incitement secure the catchment demography for ambitious Kenyan politicians who will not stop at anything for self-actualisation.

Since the onset of the new constitutional dispensation in 2010, no high profile conviction has been secured over charges of incitement. One would be forgiven to think that facilitative statutes that outlaw incitement are peripheral suggestions that have no binding effect on politicians, if their characters can inform important conclusions.

In criminal law, incitement is considered an emerging crime because the criminal objective is mostly not consummated, save for situations where the incitement’s objective is actualised, resulting in abhorrent disruption of peace and violence.

As the date for Kenya’s 2022 elections draws nearer, this is the time to act. The national intelligence community has its work cut out for data gathering and transmitting the same to organs such as the Directorate of Criminal Investigation, the National Cohesion Integration Commission, and the National Police Service and the Director of the Director Public Prosecutions for processing and action.

Javas Bigambo is a lawyer and governance specialist working as the Managing Consultant at Interthoughts Consulting in Nairobi, Kenya.

The Ethnic Factor in the Cog of Nationhood

11 Jan

First Published by the Africa Centre for Ideas on November 27, 2020 (http://www.africacentreforideas.org/policy/the-ethnic-factor-in-the-cog-of-nationhood/)

By Javas Bigambo

Ethnic identity is as old as man’s existence and distinguishes people in their societal groupings. By its nature, ethnicity is a social construct. Its anthropological significance is to strengthen humanity’s social fabric within localities for commerce and other socio-cultural purposes.

When it is explored in this direction, it enables the pursuit of happiness and prosperity for the collective and entrenches the centrality of coexistence. Our East African neighbouring country, Tanzania, exemplifies this; having over 120 ethnic groups, but that multiplicity has never gained prominence to threaten national cohesion through political wear and tear.

Comparatively, such cannot be said of Kenya, which has only 43 ethnic groups. Ethnicity has been weaponized for subjugation and emotional control. This instrumentation of ethnicity in Kenyan politics has consistently paid enormous dividends to the few elite, who use it purely for personal gain. That is precisely where the problem starts, with infinite consequences.

Fragmented nationhood

Nationhood is formed through the collective parchment of ethnicities and their interests. As such, sustained ethnic polarization for political aggrandizement stretches it to its limits.

Severally, ordinary Kenyans, just like politicians, drink from the cup of complacency on ethnic polarization. Expressions of hatred for other ethnic groups, often by those jostling for control of political affairs have been long sustained since Kenya’s independence.

In a bid to cure the long-standing malaise of political parties as self-serving vehicles of their founders, political parties were institutionalized public entities and having them funded by the exchequer based on their numbers in parliament.

Unfortunately, this has so far not saved political parties from ethnic symbolism. Sadly, most political parties are firmly in the grip of their founders, suffering from ‘founder’s syndrome’, and their dominance being relegated to the founder’s area of origin and ethnic extraction.

Ethnically driven politics

The strength of ethnic dominance is always strongly manifested in electioneering periods, more so in times of political succession where the incumbent is not seeking re-election. Politics has always served to embed ethnic hegemony intensely, and politicians incline to tribal chieftaincy for their success. 

Tribal arithmetic seems to always be at play in Kenyan elections. This heightened from 2002 during the Moi succession, where to defeat KANU’s candidate Uhuru Kenyatta, a Kikuyu, Mwai Kibaki a fellow Kikuyu was deemed a fitting equalizer. In 2007, the tribal machinations of 42 against one led to the post-election violence that followed the disputed general election. In 2013, the Kikuyu-Kalenjin equation drove Jubilee Coalition to power, and the same formulae facilitated its retention of power in 2017.

This depicts that ethnic political coalitions are easily the determinants of power play, not political ideology, or related persuasions. This is true of ODM, Wiper Democratic Party, Ford Kenya, MDG, DP, New KANU, and a host of many other parties. Agreeably, even the big major parties owe their strength to the founder or party leader’s area of origin.

In the literary world, Kenya’s prolific literary author and icon Ngugi wa Thiong’o has sustained a campaign aimed at imploring writers to do their works in indigenous languages. While this would help to grow ethnic languages and preserve cultural heritage in texts, it may also serve to ring-fence access to vital information by those who do not understand the other language(s).

Invariably, ethnic conflicts are strongly entrenched due to colonial policies, which have continued to evolve, conflicts of land, and grazing fields especially those that are communally owned, scramble for resources, scarcity of land, political competition, and disputes over political boundaries.

These challenges are old, and all have metamorphosed from the retrogressive colonial policies, which self-serving politicians have continued to incubate, leading to assorted policy inconsistencies. It is even disconcerting that while devolution holds the promise of growth and development at local levels, the boundaries of county governments are mostly ethnic-based.

Averting negative ethnicity

An institution such as the National Cohesion Integration Commission whose primary objective is to provide the mortar and ballast for national interconnection and forestall ethnic biases through policy recommendations, research and recommendation of prosecution of perpetrators, has a monumental task as a conveyor belt to transport Kenyans from negative to positive ethnic considerations.

To avert negative ethnicity, which has eternally remained the engine of polarization, national political leaders need to do more than just simplistic condemnation. They ought to facilitate the required political goodwill for the proper execution of policies and legislation to stem out negative ethnic dalliance.

The narrow path out

The gulf between legislative frameworks and practice has to be eliminated. A vital starting point would be to do away with timeworn inclinations such as including ethnic details in the national identification cards.

Secondly, the tribal factor as a variable during the national census does not add actual value to national planning or resource allocation. It should be discarded.

Upon boundaries review for counties whenever such will happen, it would be proper to reorganize counties’ boundaries to eliminate the present tribal mappings.

Combating negative ethnicity comes down to individual values and strengthened deliberate political goodwill to purge that radical evil that is eternally carcinogenic.

Mr. Bigambo, a political scientist and lawyer, is Managing Consultant at Interthoughts Consulting.

Justice System in Kenya: Positioning the Supreme Court as the House on the Hill

11 Jan

First Published by the Africa Centre for Ideas on November 24, 2020 (http://www.africacentreforideas.org/policy/justice-system-in-kenya-positioning-the-supreme-court-as-the-house-on-the-hill/)

By Javas Bigambo

From a bird’s eye view, the character of a country’s justice system is manifested in the independence, discretion, incorruptibility, and transparency of her judicial officers. They are duty bound to serve the people’s social justice interests, because the Judiciary derives its authority from the people, and exercises it through the courts and tribunals.

The architecture of Kenya’s governance is designed to facilitate separation of powers, as tempered with checks and balances, aimed at achieving balanced national leadership for good governance.

That balance is predicated on the mutual respect and effective operations among the three arms of government, namely, the Executive, Legislature and the Judiciary.

The Judiciary

The Judiciary is the only arm that is headed by a non-elected leader, the Chief Justice (CJ), who is also the President of the Supreme Court of Kenya.

Established under Article 163 of the Constitution as the final arbiter and interpreter of the Constitution, the Supreme Court stands tall as Kenya’s apex court, which also boasts the power of original jurisdiction on presidential petitions under Article 140 of the Constitution.

This superior court has appellate jurisdiction to hear and determine appeals from the Court of Appeal and any other court or tribunal as prescribed by national legislation. Primarily for being the highest court in Kenya, all other courts are bound by its decisions.

Additionally, it renders advisory opinions at the behest of the national government, any state organ, or any county government that requires such guidance in opinion for legislation, or where a lacuna in law necessitates such guidance.

Constitutional democracies are strengthened by strong justice systems that are predicated on independence, integrity, and devoid off political interference. An independent Judiciary guards against the excesses of Executive and the Legislature, the latter may attempt to exert itself through arbitrary legislation that contravene the Constitution. The courts, and most of all the Supreme Court, must not be political impresarios if they have to gain and sustain public confidence.

From this angle, we can conclude that the Judiciary, led by the Supreme Court, is the shield for democracy, for social justice, and for commercial or business confidence among citizens.

New Constitutional dispensation

This has not always been the case in Kenya. In the previous constitutional dispensations before the enactment of the Constitution of Kenya, 2010, the public domain is replete with claims of wanton and brazen interference of the judges’ work and decisions by the Executive, against the transparent interests of social justice.

However, the Constitution introduced vital strands of judicial independence beginning with the establishment of the Judicial Service Commission.

This independent body ensures the independence of the Judiciary and holding it to account. It is responsible for the recruitment of judges through a transparent merit based process and ensuring tenure of service for judges are all constitutionally enforceable. This has encouraged a culture of professionalism and impartiality in judgments, unlike before, where the judges felt indebted to the political appointing authority.

The non-involvement of politicians, including the President, in the recruitment of judges or determination of judicial matters lends wider discretion and liberty to the functioning of the courts. Further, independence is afforded by a balance between constitutional norms, political behavior, and efficacy of judicial officers within the axis of the rule of law’s operation, sustained by ethical militancy.

Restoring the confidence of justice system

Suitability of judicial officers, and effectiveness of the courts remain a going concern and a matter of public interest in democratic societies. Public confidence, bolstered by open, transparent, and meritorious recruitment of judicial officers, together with timeliness and credible court businesses, plays a crucial card in the justice system.

The Supreme Court must be constituted and led by persons of impeccable credentials and character, and that decisions of the courts, must be revered. Impressively, thus far, the operations of Kenya’s Supreme Court have not been warped by or yielded to political pressure. The apex court has observably continued to discharge its duties with impartiality and crispness of jurisprudential thought.

During his tenure as CJ, Justice David Maraga has made demonstrable effort to steer the Judiciary as an independent institution and strengthen the judicial system. Two special events stand out for his legacy.

A brave historical event such as the Supreme Court decision in the 2017 petition against the re-election of Uhuru Kenyatta as President as announced by the Independent Election and Boundaries Commission (IEBC) chagrined the political ruling class, and was settled as an extraordinary landmark judgment on the African continent for its unrivaled chutzpah.

In modern functional democracies, effective electoral dispute resolution is key to preventing violence and ensuring the legitimacy of electoral results. Democracy is strengthened by rules, procedures, and adjudication mechanisms. Electoral dispute resolutions are dependent on a competent judiciary.

The other is when in September 2020, pursuant to six petitions and on the strength of Article 261(7), Maraga advised the President to dissolve parliament for its failure to enact a law providing for two-thirds gender rule. This was a first in Kenya’s history and such bold decisions require an independent judicial space.

These two events, together with the construction of 25 new courthouses and efforts to reduce backlog of cases that initially numbered hundreds of thousands spanning decades, crown Justice Maraga’s legacy profile.

However, beyond the admiration that the Supreme Court and the judiciary has attracted with those two events, they have also attracted scorn and retribution from the political class, and as such judicial independence comes with the curse of political scorn.

Incoming Chief Justice

As CJ Maraga retires in January 2021, his courage and steadfastness, qualifies him as an audacious defender of the Judiciary and a believer in the real separation of powers. The next CJ should keep the flag of public confidence hoisted, and steer a Judiciary that is less intimidated by political forces or interests.

The CJ should take professional ethics and temerity of judicial officers to new levels, by continuing the push for the establishment of the Judiciary Consolidated Fund is in place. Article 173 of the constitution establishes the financial independence of Judiciary by establishing a Judiciary Fund that will be used for administrative expenses and other necessary for the discharge of the functions of Judiciary.

Further, working jointly with the Attorney General, ensure that the witness protection mechanism in Kenya is foolproof and properly financed. Each of the 47 counties should have a witness protection facility and mechanism, granted the requisite discretion.

The other vital expectation to be handled by the next CJ is the proper and effective digitization of the case management system by the Judiciary, especially the e-filing system, which presently remains a nightmare. CJ Maraga has notably set rolling the ball of digitization, but it is encumbered with technical and attendant material challenges that will have to be overcome.

The recent past has seen violation of court decisions. Disregard for the law or court decisions naturally casts dark shadows on good governance. It will be extremely crucial for the next CJ to ensure that court decisions are respected and honoured by all, including the Executive arm of government.

Conceivably, the Judiciary should have a special arm of enforcement security officers, well facilitated, to guarantee enforceability of various court decisions. The Supreme Court, therefore, should be and remain the towering city upon the hill of justice in Kenya.

Mr. Javas Bigambo is a lawyer and political scientist, working as the Managing Consultant at Interthoughts Consulting.

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.