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

21 May

By Javas Bigambo

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

This paper jurisprudentially delves into the right to privacy discourse.

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

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

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

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

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

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

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

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

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

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

Huduma Namba sample card.

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

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

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

To further entrench and protect the Bill of Rights, the Constitution through Article 22 asserts that “every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed or threatened.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

30 Jul

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

KENYA’S NEXT PRESIDENT: WHY HISTORY HOLDS THE ANSWER

30 Jun

Javas Bigambo

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

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

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

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

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

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

11 Jun

By Javas Bigambo

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

21 Nov

By Javas Bigambo

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Media and Safety of Journalists

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

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

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

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

Building an Accountable and Democratic Kenya Together

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

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

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

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

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

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

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

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

KENYA’S NATIONHOOD, DEMOCRACY AND CONSTITUTIONAL DECENCY BEING TESTED

1 Jan

KENYA’S NATIONHOOD, DEMOCRACY AND CONSTITUTIONAL DECENCY BEING TESTED

By Javas Bigambo, Interthoughts Consulting

The centerpiece of the development of nation states is the nature and quality of each nation’s politics, and politicians.

From antiquated Greece to modern third world and developing countries, politics is the stuff that makes or breaks nations.

Political leaders determine each country’ development agenda, foreign policy direction, tax regimes and development budgets, even though most politicians are irredeemable hedonists.

That is why it is beyond dispute that the unequaled power and subtlety of politics inadvertently makes elections a matter of universal interest. Agreeably, dependence on transparent democratic decision-making and veneration for well-structured political institutions makes national progress possible.

A democracy that makes proper use of knowledge, regards public participation, accountability and good governance ends up benefiting the denizens more, than a democracy that is blind to corruption, embraces tribalism and nepotism to the chagrin of the masses, and rides on the wheels of inevitable folly.

To determine the respect of institutions by a government, judicious use of public resources and development plans that work, democracy demands that governments renew their social contract with the people by conducting periodic elections.

For this very reason, Kenya heads to yet another election cycle in August 2017. However, owing to riches of selfishness, self-aggrandizement, limited imagination, profound vacuity, tribal interests and an indifferent electorate, anxiety is already building up over the general election, just as it has been the case in all previous elections. Kenyans’ commitment to democracy will once again be tested, question is whether it will be found to be sturdy.

Every electioneering in an election cycle in Kenya comes with stunning exuberance, energy, flaunting of ignorance, narrow interests and cut-throat competition, and mass excitement wrapped in the valiance of contestants.

Regrettably, the 2017 election in Kenya will be won by the presidential candidate with the highest ability to craft compelling propaganda and ethnic arithmetic, altogether laced with campaign messaging replete with unprintable profanities, expenditure of looted public funds, choreographed policy bravura that cannot be remembered after elections and borrowed ideas from which nothing is learned.

This has cemented the place of Kenyan politicians in the canon of global politics. Political ambition and agenda ordinarily should constitute of sterner stuff.

Political literature from which much can be learned is composed of a collage of profiles, some legendary, while others can consign you to a shrine of tears.

Across Africa, and through the prairie of Kenya’s political history, it cannot be mistaken that politics is the most misconstrued and misguided profession, where some seek personal wealth, others seek old age consolation, some use it to protect their wealth, and only a few join to lift a people from dark valley to majestic heights of development.

Hence, politics remains a strange and yet compelling thing all around the world. Progress has been baked and served through the crucible of visionary leadership, and new national or global agenda shaped by leaders now remarked as legends in history, because they chose the better and altogether rare path.

Ambition by itself is not a bad thing, but ambition mounted on ego, driven by emptiness and supported by greed can only be calamitous.

For politics, Brutus murdered Caesar in Shakespeare’s compelling play titled Caesar; for politics, Trump quit business to join the most intricate career and caused the most absurd and baffling political contests ever imagined; for politics, the world has been treated to the most distinct and awe inspiring orations in the leadership Abraham Lincoln who preserved the Union; John F. Kennedy who led America through a new frontier that took the USA to the moon; Ronald Reagan, Bill Clinton with his silver tongue; Tony Blair with crafty persuasiveness; Adolf Hitler with amazing convincing power; Tom Mboya’s profound agility; Franklin D. Roosevelt, Lyndon Johnson, Richard Nixon, Dwight Eisenhower, Harry Truman, Barack Obama with exemplary mastery of communication and soaring oration;

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Barack Obama, America’s 44th President and the world’s most compelling orator in modern history.

Freeman Mbowe, Chuka Umunna among a slate of great communicators and latter day orators, who have distinguished themselves as weavers of words.

Politics has been the stage for all of them, yet history profiles them differently.

What messes up Kenyan politics is the erroneous thought on the part of politicians who think that political power is their natural and lifelong entitlement.

I hold it firmly that no politician must be permitted to act as he or she pleases.

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Javas Bigambo sharing a thought with opinion leaders and compelling young political leaders in Kenya.

The dictates of democracy are such that the collective wishes of a people must necessarily be the guidepost for national growth and aspirations, which, in our case, are enshrined in the Constitution by what is firmly referred to as national values, which sadly make no meditative sense to Kenyan politicians.

The Constitution must be revered second to the Bible or Quran. When political leaders surrender good judgment and reason to beasts of the bush, their sycophants hauntingly rise to personify absurdity that is a departure from the civility that defines national decency.

Nationhood cannot be perfected when politicians and individuals entertain disregard for constitutionally established institutions, or disrupting the esteem of constitutional offices they hold, or even worse, watering down independence by surrendering democratic power or management of elections to foreign powers or institutions.

Ours must not continually be a disfigured homeland, misguided by apparitions and politicians’ phantasmagoria, which lead a whole nation into sanctioned darkness by the people’s own inaction.

Due to diminished wisdom and reason, Kenyans have experienced tragic elections in the past, the worst being the 2007 Post-Election Violence.

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Images from the 2007-2008 Post Election Evidence that shook the foundations of our democracy and put a nation’s conscience to shame.

Honesty and sobriety was washed off the inner beings, and anger was permitted to flourish. For no reason whatsoever must violence be given a chance, ever, because of elections. There must be no reason for anyone to orchestrate violence after the August 2017 elections.

We should find counsel in the wisdom of Thomas Paine who once wrote “He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.”

Kenyan democracy, through every election cycle, must be ameliorated by the unadulterated growth of truth that no politician must make his or her followers burn our country and other people’s property, and that as ordinary citizens, ours is the harder task of defending our democracy, yet not the less.

This is a noble purpose we should pursue to a noble end. The mere display of fierce ambition by politicians need not be the gasoline we use to burn that which generations of Kenyans have, through toil and sacrifice, built up.

To reduce our elections therefore to merely to an arithmetic of tribal groupings and electoral victory being merely a function of tribal arithmetic, and not a function of progressive ideas supported, is to postulate a frail thesis that tribes build nations and not brilliant ideas of visionary leaders.

This is what President Uhuru Kenyatta should know, this is what Opposition Leader Raila Odinga must not forget. It is precisely what CORD/ NASA and Jubilee Party should reflect on.

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President Uhuru Kenyatta who will seek re-election in the August 2017 general election.

 

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Former Prime Minister Raila Odinga, who will lead an onslaught against Kenyatta’s re-election bid.

 

 

 

 

 

 

 

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

 

 

JUSTICE ROLLS ON AS WILLY MUTUNGA EXITS AS CHIEF JUSTICE

13 Jun

By Javas Bigambo

If there ever was a Drum Major for justice and the rule of law, it is Justice Willy Mutunga. This week is historic. The honourable Chief Justice who elected to retire a year early, leaves office. A fair-minded judge has walked among us.

Justice Willy Mutunga has retired from office.

Justice Willy Mutunga has retired from office.


The stars in the expansive sky are not illuminating his name in twinkles, but it cannot be denied that the mortal judge has left a legacy so immortal.

In comparison, his predecessors dim in their glow juxtaposed with Willy Mutunga’s irrefutable shine. No Chief Justice had ever proven their mettle in the leadership of the judiciary in the interest of justice as opposed to political interference, than that which has been witnessed in his time.

More by example than precept, the first President of the Supreme Court in the new constitutional order has demonstrated that justice must not always be understood to be an advantage to the strong or the wealthy. In his time, he has been seen as that force at the helm that possibly hindered the executive from wanton miscarriage of justice through the justice system as a tool.

The state has openly done much to wane the independence of key institutions, including the judiciary, and he has overtly chided at the all-powerful state machinery, culminating in his last hoarse wail that Kenya is a bandit economy.

Except for the glitch he nearly suffered with the entire Supreme Court during the 2013 presidential petition, the man has irradiated light on the maxim that whoever comes to equity must come with clean hands.

Cartoonist GADO's impression of the spectacle that was the 2013 Presidential Petition at the Supreme Court.

Cartoonist GADO’s impression of the spectacle that was the 2013 Presidential Petition at the Supreme Court.


He impressed even the more when he made the report on the transformation of the judiciary after his first hundred and twenty days in office.

From the start, he courted controversy. The President of the Supreme Court preferred to carry his rag pack like a magician, defended his stud, and did not give himself to don the finest suits and converse in legalese, the pride in the realm of the learned friends. The man has had his flaws, but credit him for the good work done.
Those who propagate the status quo will want to forget him so quickly, no doubt, but history has a place for him already. No mud would stick on him. And those earnestly diametrically opposed to Mutunga’s leadership, finding no torn hem on his garment of leadership, chose to hate on him for the stud he wore, an artifact that never blocked his ear for justice.

He took over an institution that had suffered the stroke of public confidence crisis, thoroughly underfunded and where justice was procured by the highest bidder. While the judiciary is not yet out of the woods, it is fair to say that it is nearer the road than when he took up its leadership.
No one doubts where he stands on the issue of corrupt judicial officers, and it is alright that he is not standing in the grey area.

The judiciary has opened up new and expanded courthouses in most areas within counties, and has done much to reduce backlog of cases in a bid to dispense justice. Admission to the bar for new attorneys no longer had to wait for eternity and a day.

Under Willy Mutunga’s leadership the judiciary has ceased being an allegory of judicial obfuscation where access to justice was known to shrivel on account of social status. Now social justice has a bigger and better platform, reinforced by an even more liberal Bill of Rights in the Constitution of Kenya 2010.

Perhaps Justice Mutunga’s last best efforts and attitude for justice is evident in the Justice Rawal retirement appeal imbroglio, now set for determination at the Supreme Court. By a stroke of his pen, Mutunga rolled back the date initially issued by Ndung’u Justice on the hearing date for the Supreme Court hearing of the appeal, on a matter so open to the naked eye.

It is famous for the dictum of Lord Camden who once quipped that “If it is law, it will be found in our books. If it not to be found there, it is not law”, in the famous Entick v Carrington. One only hopes that the Supreme Court will not fail to agree with the initial High Court ruling and the recent Court of Appeal ruling on the express issue of the retirement age of judges inscribed in the Constitution in glowing letters.

Whatever path the leadership of the Supreme Court takes henceforth, is justly in the wisdom of whoever takes over. But if wisdom be ours for the pride, the conscientious among us will node in agreement with the uncannily judicious Lord Denning who asserted “Let justice be done, though the heavens fall.”

In the journal of human affairs on earth, nothing hoists justice better than unprejudiced course of liberty among men.

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