Archive | January, 2021

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.