Archive | September, 2014

SEXUAL ASSAULT CLAIMS: WHY NOT PURSUE JUSTICE THROUGH THE COURTS FOR THE MATTER OF SHAILJA PATEL AND TONY MOCHAMA?

25 Sep

By Javas Bigambo

I find it most difficult a task to opine on a matter that celebrated seniors, intellectual giants and my contemporaries have long weighed in, the object of my fear being that my view may not necessarily be diametrically detached from some views already in circulation, on the alleged subject of Tony Mochama sexually assaulting Shailja Patel.

For my response, I do not intend to make an academic rejoinder to this matter, more refined academics have already responded. Neither am I willing to jump into a biased rhapsody of condemnation by throwing stones and sticks without analysis of unequivocal meritorious witness accounts and counter accounts from both sides.

The person and character on Tony Mochama has been called to question, primarily on account of the alleged occurrence on the said date now well known to all. I must not defer any further to state that my few interactions with Mochama on social media, and one account in person, have undoubtedly left a bitter taste in my mouth, his sharp unapologetic tongue incessantly being on the loose. Perchance that is his vocation. But that I leave to literary and sociological historians for analysis, if needs be.

I have not met Shailja in person or spirit, save through her works. So don’t tell me I am biased, for, in principle, I have no basis to depend on any social ties as crutches to make my view.

It is improper and unfortunate that such act of sexual assault happened, if it did. It is more unfortunate that it is alleged to have happened at an assembly of creative, progressive and exposed minds. It is obvious that a sound mind cannot merely create such assertions, but it must also be clear that such charge must be verified and proper avenues embraced before putting the whole into circulation. There must not seem to be a thin membrane of pursuit of justice and malice in this matter.

Complete unverified accounts have been made by both sides, none zealous to pursue the most logical and necessary, yet urgent avenue of the justice system, yet both sides most given to witness or permit the social demise of the other.

The evidence of selected responses on this platform and elsewhere permit me the confidence to state that the manner in which this whole allegation has been presented makes it easy for one to be emotive, partisan and possibly uncritical of the whole.
I have no grounds for approbation or to excuse any claims made by either side, as I am neither a judge nor God to determine this matter ex cathedra.

It is logical and fitting, that the matter can and should effectively be presented to our growing criminal justice system, for the necessary inter partes hearing and acceptable determination.
I do necessarily believe in alternative dispute resolution mechanisms, in selective matters, which, I hold, the matter at issue should not entertain.

I see scattered merit, if any, in the urgent calls to demobilise Mochana socially, economically and professionally, primarily on the account of strong chronicles made by Prof. Wambui for and on behalf of Shailja. Neither does Mochama’s distant response offer any meaningful appreciation of the seriousness of the matter now before us.

The weight of this allegation should not be left to the strength of integrated social and professional network systems enjoyed by each party, which can potentially be explored with relative impunity.

I agree with Muthoni Wanyeki that it is in our place to hold the justice system to account by using it. I hold that our appreciation of Kenya’s justice system as frail must not be an excuse to avoid using it, whatever the matter. It is the justice system and the supremacy of laws that makes life less “brutish, nasty and short”.

Further, I agree with Al Kags that we can have this matter excellently pursued by affording each side to present their case in the courts of law. I cannot disagree with Robert Alai to the unstinting extent that condemnation of Mochama without hearing him out is tantamount to crucifying someone then later trying to establish whether the crucifixion was proper, after all.

I agree with Prof. Keguro Macharia, in part, that our keenness on accountability must not be loosened. But that accountability must not be exclusive of the existing tools and instruments that make legal and social progress possible. It may not be proper that we should set out to give a dog a bad name chiefly because we want to kill it.

If Shailja Patel was sexually assaulted by Tony Mochama, let her take the matter to the courts. If Tony Mochama refutes the allegations and is willing to prove his innocence, let him go to court. The courts will afford both parties a less dramatic avenue to resolve this matter, without the base alloy of emotional and fraternal sympathy without preliminary condemnation.

This, in my estimate, will potentially guard against the alleged victim suffering further or annexed violence, by giving room to normative and substantive application of the law. Let the hunger for justice be the railroad upon which the train of truth will pass.

Social expediency must not be a substitute or be recourse to systematic justice. If we cannot believe in the justice system at a time of relative order, what would make us believe in it at a time of chaos?
I do believe that women’s rights are undoubtedly human rights, and thus my view that this matter is best handled through an acceptable rights-based approach.

Sexual assault is a public issue, and of unfettered public interest. Documented cases around the continent such as that of Amina Lawal of Nigeria whose appeal ruling came through in 2003 must affirm our collective courage to believe in the justice system, however frail it is, however disbelieving we are in it.

In closing, numerous reports in the public domain in Rwanda, Uganda, the Congo, South Africa and here in Kenya make absolute sense of the way forward, founded on accounts of transitional justice, closing the gender gap, women empowerment and law enforcement in developing nations. UNIFEM’s report 2008/2009 titled “Who Answers to Women: Gender & Accountability” also offers useful discourse. Like authentic justice, future history can be unforgiving on a matter of this nature.

POLITICAL MEN, GOD AND THE EMERGING MULITIPLE CHALLENGES OF DEVOLUTION IN KENYA: REFLECTIONS ON THE REFERENDUM AND THE WHOLE DEVOLUTION AGENDA

23 Sep

By Javas Bigambo

Kenya’s political intelligentsia is on an ugly mission. The rejuvenated pursuit of corroding devolution in Kenya is so tasteless, so thankless an endeavour that at worst amounts to spitting in the face of Kenyans. This paper discusses the devolution imbroglio in Kenya, and the convoluted path of implementation of the Constitution of Kenya 2010, reflecting on political and socio-economic yearnings that are emerging to be either a curse, or a calculated move to kill the goose that is tipped to lay the golden egg.

Machakos Governor Alfred Mutua has excellently used PR to demonstrate his efforts to transform his county.

Machakos Governor Alfred Mutua has excellently used PR to demonstrate his efforts to transform his county.


Devolution is the statutory granting of powers from the central government (national government) of a sovereign state to governments at subnational levels, such as counties or states. It is a form of decentralization. Devolved territories have the power to make legislation relevant to the area.

With regard to Constitution of Kenya 2010, devolution encompasses the relocation of some functions, resources, and power to the County level of government, so as to bring services closer to the people, and to include them in decision making on issues that affect them and the approaches to governance most desirable to them. Devolution in Kenya is viewed in the context of propelling rapid economic growth.

Devolution differs from federalism in that the devolved powers of the subnational authority may be temporary and ultimately reside in central government, thus the state remains, de jure unitary.

In Kenya, county governments are responsible for service provision in agriculture, transportation, trade licenses, sanitation, pre-primary education, village polytechnics and most health facilities. While health as a function has been largely devolved, the role of policy formulation remains a responsibility of the national government, including the management of some hospitals such as level 4 and level 5 hospitals, which include referral hospitals. In a general sense, the national government has the overriding responsibility of policy formulation while the county governments are to deliver the various services under their functions.

Therefore, the purpose of devolution is to promote democracy where people are actively involved in leadership, governance, and development for the benefit of all. Devolution therefore is a type of administrative decentralization. When governments devolve functions, it means that they transfer authority for decision-making, finance, and management to semi-autonomous units of local government with corporate status. In devolved systems such as the one in Kenya, the counties have clear and legally recognized geographical boundaries over which they exercise authority and within which they perform public functions.

The Constitution of Kenya postulates that the objectives of devolution are:
i. Promotion of democracy and accountability;
ii. Fostering of national unity;
iii. Enhancing the participation of the people in the exercise of the powers of the state and in making decisions affecting them;
iv. Recognition of the right of communities to manage their own affairs and to further their development;
v. Protection and promotion of the interests and rights of minorities and marginalized communities;
vi. Promotion of social and economic development throughout Kenya;
vii. Ensuring of equitable sharing of national and local resources throughout the country;
viii. Enhancement of checks and balances and the separation of powers.

For too long ordinary citizens and local communities have not had significant say in what happens in in their constituencies, or political jurisdictions, whether in development initiatives, planning, implementation or even budgeting. Sadly, not much of this has changed in Kenya since the advent of devolved government.
It is disquieting that hopes that devolution in Kenya will lead to greater accountability are nose-diving.

The Journey to Devolution in Kenya.
Historically, in the run up to independence, the matter of local government became a key bone of contention, partly because Kenya’s pre-colonial inheritance was one of strong localism. It is from this strong tradition, reinforced by vibrant local authorities with responsibility for a range of services that the tradition of decentralised power grew, (Maina 2005).

The colonial administration encouraged the formation of political associations along regional-ethnic lines, thereby rendering nationalist political movements organisationally weak. The colonialists forbade promising political parties from organising nationwide, confining such organisation to provinces instead.

This demand was driven principally by the desire to reduce the control of Kenya’s larger ethnic groups.
Negotiations of these parties with the British government produced a quasi-federal constitution, the so-called Majimbo Constitution, which gave significant powers to elected regional assemblies. Elected local authorities (councils), with their own local civil servants and bureaucrats, were to deliver most public services, such as education and health. But full implementation of the Majimbo constitution was derailed soon after independence.

The Majimbo constitution itself was replete with uncertainties, giving central government civil servants leeway to interpret it as they pleased. For instance, provisions were quite vague about the extent and purpose of federalism, procedures for participation and the roles of officials at various administrative levels. This was in addition to the unwillingness of central ministries to provide technical and managerial assistance to local government units.
The eight regional governments were abolished in 1966. Nonetheless, Kenya maintained a system of local government operational at the district level and in urban centres, although made much weaker by the centralisation of functions and revenue control.

Attempts in 1967 to strengthen these local authorities, to mitigate against the effects and criticism of repeal of the Majimbo constitution, had little chance to take root as centralisation was accomplished through the Transfer of Functions Act in 1969, by which major services such as primary education, health and road maintenance, were transferred back to the central government.
This same Act also transferred the Graduated Personal Tax (GPT), the major source of revenue for local government, to the central government. Responsibility for “multi-district” planning and national programmes was to be placed in the hands of the head ministries, while responsibility for the operational aspects of the district-specific rural development projects was to be delegated to the district.
Activities of local authorities and non-state actors were to be integrated into district programmes. For this, these local actors were invited to join District Development Committees (DDCs), which formed the cornerstone of the new strategy.
Membership of the DDC was to include a district commissioner (DC) as chairperson, a district development officer (DDO), heads of ministerial departments, area members of parliament, the chairperson of local authorities and officials of KANU (the then-ruling party).

In the years that followed during the immediate post-colonial government under President Jomo Kenyatta’s leadership; the Constituency Development Fund (CDF) and the Local Authority Transfer Fund (LATF) during President Mwai Kibaki’s leadership. Yet these have not always performed to the expectation of the people.
These forms of resource distribution were subject to many abuses, and fell short in the area of public participation. Citizen participation in CDF and LATF through the Local Authority Service Delivery Action Plan (LASDAP) process was next to zero.

Tough lessons can be drawn from the successes or failures of these two funds to inform participation at the county level. It is evident that the quality of participation in financial matters both at the national and local levels was limited to impact change on decision making or resource allocation.
Furthermore, the above systems of transference had poor accountability mechanisms, corruption, inefficiency and mismanagement of the resources, (Maina 2005). This meant that service delivery to grassroots in the key areas of land, health, and agriculture was poor and not effective.

Political interference and rewarding political party supporters rather than grassroots communities was the order of the day. For example, the Constituency Development Fund (CDF) was managed by Members of Parliament, who single handedly selected members of CDF Management Committees largely from their supporters.
The devolved governments and all their administrative units need to effectively ensure that county residents actively participate in decision making and development initiatives, and directly feel the impact of the county governments absorbing the billions of shillings annually.

1. There is need to recognise the urban development sector as a stand-alone sector and recognise it as such in the CIDPs by all county governments.
2. County governments need to ensure they deal capacity and management of semi-urban areas, towns and urban areas.
3. Urgency in increased training in the areas of trade and finance.
4. Establish a committee to oversee the implementation and coordination of the Act and the attendant developments.
5. Need to empower county decentralised units. This will help to manage municipalities across the country.
6. Need for effective town planning across the counties.
7. It is necessary for the private sector to have space through which they can play their role effectively.(Private Public Partnership)

Additionally, the national government jointly with county governments need to address the numerous challenges that inhibit the vertical growth of the micro and small enterprises sector. This will improve competitiveness of local products, and possibly county governments need to consider a policy to purchase products from the jua kali sector. Key among them is quality of products and limited product range, which result in low competitiveness. This, he attributed to low levels of technological innovations, technology acquisition and adoption among the operators in the MSE sector.

It is regrettable that low levels of education and technical training of some of the operators and inadequate financial capacity to acquire available technology and infrastructure, sometimes hinders them from seeking and using appropriate technology.

County governments need to be awake to the needs of the people, and the realities of universal development within the counties.
The concept of devolution is motivated by two principles: the demand for equitable distribution of national resources and the need to empower the ordinary mwananchi by ensuring that public expenditure reflects their needs. In this regard, the Constitution, under article 174, emphasises citizen participation in the exercise of power, and in the making of decisions that affect them.

Still, citizen participation is neither a clear concept nor is it easy to implement. Despite the constitutional requirements, Kenya is yet to come up with a clear framework to ensure implementation of citizen participation at the county level, including participation in the county budget making process.
This moment, our courage cannot be defined simply by our willingness to face a failing approach or struggling system of devolved government, but by our determination to overcome 21st century challenges, and form a progressive partnership that will be the envy of African democracies.

Today, Kenya stands tall on the gains of democracy, and the benefits of a devolved system of government. The 47 autonomous county governments have made the elastic dreams of development possible, and the fruits of progress within reach.

Five years ago, on August 27th, the sun rose over Kenya, and a new Constitution was promulgated. The constitution has made this possible, and we take great pride in it. With the evidence of this dream Constitution, it is here, in this country that dreams are not only valid but are validated.

Through this platform Kenya rises to meet the hopes and aspirations of poor families and struggling students. We meet the fears of the rich and the legitimate discontent of labourers from flower farms to those who work in chilly tea and coffee farms. We meet the deferred hopes of young people and the struggles of women young and old.
Our Constitution is the living promise of our liberty and the truth hoped for, which remain the challenge of our generation. It is from this living promise that the reality of devolution rests upon our laps. It is therefore fitting for Kenyans to defend this Constitution with sweat and blood.

The evidence before our eyes is that one year after the roll out of the devolved system of government; we are in a quagmire of system ridicule and waste.

Nation Newspaper's Cartoonist GADO captured it excellently when he indicated that devolution hasn't taken place in the minds(of political leaders).

Nation Newspaper’s Cartoonist GADO captured it excellently when he indicated that devolution hasn’t taken place in the minds(of political leaders).


The evidence of unnecessary travels, excessive expenditure and lack of accountability dismays all of us.
Every side we turn we see communities in need. We see that only the well-connected seem to be progressing. We see the youth and the disabled fighting for opportunities which are hard to find. We see women fighting inequality and children fighting for protection. We see families becoming poorer by the day and political leaders becoming richer by the day. We see in common how we have nothing in common.

The Political Musical Chairs and the Absence of Wisdom
The collective sacrifice, aspirations and Kenyans’ commitment to all-round national development to the villages and hamlets was self-evident during the 2010 referendum, which was swiftly followed by the promulgation of the new Constitution.

Four years after the said promulgation, elected political leaders seem most determined to misinterpret the will of the people.

The emerging sectarian and nationalistic overtones for referendum, led by the political highbrows, pulling in different directions, calling for a wide range of constitutional and administrative changes, and the unwillingness of the elected leaders to discuss on the imperatives of the touted referendum illuminates to numerous derivatives of the referendum push. Some want to demonstrate their political might, others want to position themselves for the next general election, while others want to settle political scores.

The civil society, which ordinarily positions itself as the rare conscience of the nation, has become all too complacent, and has willingly, all evidently elected to keep the peace in the quarters of silence.
Religious leaders on the other hand have become paragons of ethnicity as opposed to voices of hope and cohesion. They live each day to please political leaders of their ethnic orientation. God seems to have departed from the hearts and minds of most religious leaders, and now they are grouping in the dark.

When non-state actors, scholars and independent activists lose focus and become impresarios of the ruling class, or tread too carefully for the fear of unsettling clan masters or so as not to attract unwarranted verbal attacks from the paid supporters of political elites, a nation begins to die.

Devolution is the answer to Kenya’s bothersome question of rural development. It must be the call and interest of all political voices to be the development voices in Kenya, as it must be the case in any society.
The burden of development must not entirely be placed on the shoulders of elected leaders, but on all the people. The kernel of public participation in political and development praxis is the genius of collective accountability, and counting on the people as partners in development.

Kenya’s national Assembly and the Senate have not prioritised enacting a strong law on public participations. The limited provisions on public participation in the County Government Act offer nothing much beyond definition, and how it is to be understood. That explains why nearly all county governments’ budgeting processes have cosmetic involvement of the people within sub-counties.

When you look deeply, you realise that Members of County Assemblies are positioning themselves as small gods, who are thirsty for power, recognition and visibility, and most of them can barely hold a meaningful sustained discussion on critical national or development issues in English or Kiswahili, with utter absence of wisdom.
When you look deeply, you realise that Members of Executive Committees in counties want to be worshiped and celebrated, yet some are embattled for their soaring thirst for wealth, influence and ambition.

When you look even deeply, you note that Senators, MPS and women representatives are the one winning county tenders to supply goods and services in collaboration with County Secretaries.

Most youth people who are not related to those in power, and majority of the disabled cannot secure businesses in counties for the same reason that they are not known.

It is obvious that Kenya will not hold multiple plebiscites. Governors are pushing for more revenue allocation dubbed “Pesa Mashinani”, the Jubilee Coalition want s referendum to cap the age limit for presidential contenders, CORD Coalition wants a referendum to address insecurity, disbandment of the IEBC, reduce cost of living, de-tribalise public service and eliminate famine. The challenge is how the referendum question will be framed for the people to vote on.

Perennial self-interest and sectarian interests are making discourse on the plebiscite quite belligerent and in the process loses sense. The worst is to politicize devolution or development. Devolved government in Kenya has raised more questions than the answer it was supposed to be. Our politicians are the poison arrow killing devolution.

Thus far, the emerging challenges of devolved government in Kenya are political in nature, and it is the political man that seems keen to rock the boat as the common mwananchi helplessly watches. Perhaps only God can save Kenya and devolution, because the Constitution seems unable.

REFERENCES
Kanyinga, K. and D. Okello (eds.) (2010) Tensions and Reversals in Democratic Transitions, Nairobi: Society for International Development/ Institute for Development Studies (SID/IDS)
Maina, B. (2005). Monitoring and evaluation of support to decentralisation and local governance: Kenya Case Study. (ECDPM Discussion Paper 61). Maastricht: ECDPM. Ministry of Planning and Vision 2030, (October 2007). Kenya Vision 2030: A Globally Competitive and Prosperous Kenya.
Muriuki G. (1974) Devolution of Power in the Agikuyu community. Fotoform Ltd.
N.A. Saleemi, (2009), General Principles of Law Simplified, Saleemi Publications Ltd., Nairobi
National Council for Law Reporting (Kenya), (2012). The County Governments Act 2012.
National Council for Law Reporting (Kenya), (2010).The Constitution of Kenya 2010.

Ndegwa, S.N. (2002) ‘Decentralization in Africa: A stock-taking survey’, Africa Working Paper Series No. 40, the World Bank, Washington, D.C
Ng’ang’a Wanguhu. (2006). Kenya’s Ethnic communities. Foundation of the Nation. Nairobi, Kenya. Gatúndú Publishers Limited.
Office of the Deputy Prime Minister and Ministry of Local Government, (April 2011). Volume I: Report of the Task Force on Devolved Government.
Omolo, A. (2010) ‘Devolution in Kenya: A critical review of past and present frameworks’, in IEA Devolution in Kenya: Prospects, challenges and the future, IEA Research Paper Series No. 24, Institute of Economic Affairs, Nairobi.
Restructuring the Kenyan State. ( 17th November 2013), http://www.arrforum.org/index.php
The Constitution of Kenya. Chapter 11- Devolution.

The writer is a key policy and political analyst, and a consultant in governance, devolution and communication at Interthoughts Consulting. He can be reached through jbigambo@interthoughts.co.ke