Some things I do not know – but this, THIS I know!

A few friends have sought my irrelevant opinion on the momentous, but hardly surprising, ruling by the International Criminal Court today; that ruling leaves me strangely discontented, unsatisfied – like a starving man who has just been fed meat-flavoured air bubbles. The ruling of the Court is decisive but inconclusive, it has completed but not finished – it has neither acquitted nor condemned; it has declared that there is indeed no case to answer – but only because of grave malfeasance. There has been no justice, neither for the victims nor for the accused – process and procedure have triumphed over substance. To paraphrase, some things I do not know, some things I know – but of this, THIS I know: 1,333 fellow citizens in various places around the country did not kill themselves; or incinerate their loved ones; or rape and sodomise themselves; or maim themselves; or forcefully circumcise themselves. Hundreds of thousands did not just mindlessly and for no apparent reason abandon their homes and flee in mortal terror, even as no one pursued them. I also have absolutely no doubt that tribes were not killed, incinerated, maimed, forcefully circumcised, raped or robbed – individual invaluable human beings were, mothers and daughters, fathers and sons! Tribes did not kill, burn, maim, forcefully circumcise, rape and plunder – individual criminals did! Maybe, just maybe, when we do get to understand and accept these facts, then there will be justice for the victims of our national madness of 2007/8; and retribution for those that caused it to happen by their words and their actions – right from the mismanagement of the electoral process to the planning and implementation of the genocide. I too will be in prayer in the coming days – in earnest prayer that those that have been so grievously wronged but have lost all hope of relief shall find strength to continue living; in thankful prayer that there is justice higher than the courts, a justice that is unequivocal; and most importantly, in passionate supplicatory prayer that never again should our nation witness such sorrow and destruction. I am hopeful that my fellow believers, of all faiths, shall in the quiet secrecy of their hearts join me in these prayers – and that even those that do not believe, shall join their empathy to ours in wishing for these things.

If miscarriage of justice can be attributed to God and to prayers where then can the oppressed possibly run to in time of peril? When the oppressors liberally invoke the name of God what is left for the oppressed to invoke? If indeed we have reached a situation in which what money can do no God can undo then religion which has always been the ultimate refuge for the downtrodden will lose meaning and one can’t possibly imagine a better world; for things can never be worse than where we stand today. – Ephraim Njega

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disappearing women

Deeply profound and moving.

ku[to]starehe

several years ago, i sat down in a matatu and a man touched my thigh. i told him to stop touching me. the man next to him told me it was because my skirt was too short.

i began to wear longer skirts.

two days after that, a man at odeon reached out and squeezed my breasts between his long fingers as if checking for ripe tomatoes. i told him to stop touching me. he told me my shirt was cut too low for him to resist.

i began to wear shirts with a higher neckline.

a few days after that, a man at work run his hand over my butt and smiled at me. i told him to stop touching me. he said my trousers hugged my butt very nicely, told me he was only being appreciative and if i didn’t want him to be, i shouldn’t wear such…

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Not just to free the prisoner, but the jailer as well…

Remarks of President Barack Obama – As Prepared for Delivery:

Remembering Nelson Mandela
Johannesburg, South Africa
December 10, 2013

To Graça Machel and the Mandela family; to President Zuma and members of the government; to heads of state and government, past and present; distinguished guests – it is a singular honor to be with you today, to celebrate a life unlike any other.  To the people of South Africa – people of every race and walk of life – the world thanks you for sharing Nelson Mandela with us.  His struggle was your struggle.  His triumph was your triumph.  Your dignity and hope found expression in his life, and your freedom, your democracy is his cherished legacy.

It is hard to eulogize any man – to capture in words not just the facts and the dates that make a life, but the essential truth of a person – their private joys and sorrows; the quiet moments and unique qualities that illuminate someone’s soul.  How much harder to do so for a giant of history, who moved a nation toward justice, and in the process moved billions around the world.

Born during World War I, far from the corridors of power, a boy raised herding cattle and tutored by elders of his Thembu tribe – Madiba would emerge as the last great liberator of the 20th century.  Like Gandhi, he would lead a resistance movement – a movement that at its start held little prospect of success.  Like King, he would give potent voice to the claims of the oppressed, and the moral necessity of racial justice.  He would endure a brutal imprisonment that began in the time of Kennedy and Khrushchev, and reached the final days of the Cold War.  Emerging from prison, without force of arms, he would – like Lincoln – hold his country together when it threatened to break apart.  Like America’s founding fathers, he would erect a constitutional order to preserve freedom for future generations – a commitment to democracy and rule of law ratified not only by his election, but by his willingness to step down from power.

Given the sweep of his life, and the adoration that he so rightly earned, it is tempting then to remember Nelson Mandela as an icon, smiling and serene, detached from the tawdry affairs of lesser men.  But Madiba himself strongly resisted such a lifeless portrait. Instead, he insisted on sharing with us his doubts and fears; his miscalculations along with his victories.  “I’m not a saint,” he said, “unless you think of a saint as a sinner who keeps on trying.”

It was precisely because he could admit to imperfection – because he could be so full of good humor, even mischief, despite the heavy burdens he carried – that we loved him so.  He was not a bust made of marble; he was a man of flesh and blood – a son and husband, a father and a friend.  That is why we learned so much from him; that is why we can learn from him still.  For nothing he achieved was inevitable.  In the arc of his life, we see a man who earned his place in history through struggle and shrewdness; persistence and faith.  He tells us what’s possible not just in the pages of dusty history books, but in our own lives as well.

Mandela showed us the power of action; of taking risks on behalf of our ideals.  Perhaps Madiba was right that he inherited, “a proud rebelliousness, a stubborn sense of fairness” from his father. Certainly he shared with millions of black and colored South Africans the anger born of, “a thousand slights, a thousand indignities, a thousand unremembered moments…a desire to fight the system that imprisoned my people.”

But like other early giants of the ANC – the Sisulus and Tambos – Madiba disciplined his anger; and channeled his desire to fight into organization, and platforms, and strategies for action, so men and women could stand-up for their dignity.  Moreover, he accepted the consequences of his actions, knowing that standing up to powerful interests and injustice carries a price.  “I have fought against white domination and I have fought against black domination,” he said at his 1964 trial.  “I’ve cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities.  It is an ideal which I hope to live for and to achieve.  But if needs be, it is an ideal for which I am prepared to die.”

Mandela taught us the power of action, but also ideas; the importance of reason and arguments; the need to study not only those you agree with, but those who you don’t.  He understood that ideas cannot be contained by prison walls, or extinguished by a sniper’s bullet.  He turned his trial into an indictment of apartheid because of his eloquence and passion, but also his training as an advocate. He used decades in prison to sharpen his arguments, but also to spread his thirst for knowledge to others in the movement.  And he learned the language and customs of his oppressor so that one day he might better convey to them how their own freedom depended upon his.

Mandela demonstrated that action and ideas are not enough; no matter how right, they must be chiseled into laws and institutions.  He was practical, testing his beliefs against the hard surface of circumstance and history.  On core principles he was unyielding, which is why he could rebuff offers of conditional release, reminding the Apartheid regime that, “prisoners cannot enter into contracts.”  But as he showed in painstaking negotiations to transfer power and draft new laws, he was not afraid to compromise for the sake of a larger goal.  And because he was not only a leader of a movement, but a skillful politician, the Constitution that emerged was worthy of this multiracial democracy; true to his vision of laws that protect minority as well as majority rights, and the precious freedoms of every South African.

Finally, Mandela understood the ties that bind the human spirit.  There is a word in South Africa- Ubuntu – that describes his greatest gift: his recognition that we are all bound together in ways that can be invisible to the eye; that there is a oneness to humanity; that we achieve ourselves by sharing ourselves with others, and caring for those around us.  We can never know how much of this was innate in him, or how much of was shaped and burnished in a dark, solitary cell.  But we remember the gestures, large and small – introducing his jailors as honored guests at his inauguration; taking the pitch in a Springbok uniform; turning his family’s heartbreak into a call to confront HIV/AIDS – that revealed the depth of his empathy and understanding.  He not only embodied Ubuntu; he taught millions to find that truth within themselves.  It took a man like Madiba to free not just the prisoner, but the jailor as well; to show that you must trust others so that they may trust you; to teach that reconciliation is not a matter of ignoring a cruel past, but a means of confronting it with inclusion, generosity and truth. He changed laws, but also hearts.

For the people of South Africa, for those he inspired around the globe – Madiba’s passing is rightly a time of mourning, and a time to celebrate his heroic life.  But I believe it should also prompt in each of us a time for self-reflection. With honesty, regardless of our station or circumstance, we must ask:  how well have I applied his lessons in my own life?

It is a question I ask myself – as a man and as a President.  We know that like South Africa, the United States had to overcome centuries of racial subjugation.  As was true here, it took the sacrifice of countless people – known and unknown – to see the dawn of a new day.  Michelle and I are the beneficiaries of that struggle.  But in America and South Africa, and countries around the globe, we cannot allow our progress to cloud the fact that our work is not done.  The struggles that follow the victory of formal equality and universal franchise may not be as filled with drama and moral clarity as those that came before, but they are no less important.  For around the world today, we still see children suffering from hunger, and disease; run-down schools, and few prospects for the future.  Around the world today, men and women are still imprisoned for their political beliefs; and are still persecuted for what they look like, or how they worship, or who they love.

We, too, must act on behalf of justice.  We, too, must act on behalf of peace.  There are too many of us who happily embrace Madiba’s legacy of racial reconciliation, but passionately resist even modest reforms that would challenge chronic poverty and growing inequality.  There are too many leaders who claim solidarity with Madiba’s struggle for freedom, but do not tolerate dissent from their own people.  And there are too many of us who stand on the sidelines, comfortable in complacency or cynicism when our voices must be heard.

The questions we face today – how to promote equality and justice; to uphold freedom and human rights; to end conflict and sectarian war – do not have easy answers.  But there were no easy answers in front of that child in Qunu.  Nelson Mandela reminds us that it always seems impossible until it is done.  South Africa shows us that is true.  South Africa shows us we can change.  We can choose to live in a world defined not by our differences, but by our common hopes.  We can choose a world defined not by conflict, but by peace and justice and opportunity.

We will never see the likes of Nelson Mandela again.  But let me say to the young people of Africa, and young people around the world – you can make his life’s work your own.  Over thirty years ago, while still a student, I learned of Mandela and the struggles in this land.  It stirred something in me.  It woke me up to my responsibilities – to others, and to myself – and set me on an improbable journey that finds me here today.  And while I will always fall short of Madiba’s example, he makes me want to be better.  He speaks to what is best inside us.  After this great liberator is laid to rest; when we have returned to our cities and villages, and rejoined our daily routines, let us search then for his strength – for his largeness of spirit – somewhere inside ourselves.  And when the night grows dark, when injustice weighs heavy on our hearts, or our best laid plans seem beyond our reach – think of Madiba, and the words that brought him comfort within the four walls of a cell:

It matters not how strait the gate,
How charged with punishments the scroll,
I am the master of my fate:
I am the captain of my soul.

What a great soul it was.  We will miss him deeply.  May God bless the memory of Nelson Mandela.  May God bless the people of South Africa.

Reproduced from BBC News Africa.

Kenya@50 – a legacy of division, hatred and shattered dreams

Many seeds were planted at the birth of our nation, and in the presidential eras since. Some were seeds of wholesome grain but many were seeds of virulent weeds. In fact some were not seeds at all, but rather the eggs of various venomous reptiles and stinging insects.

Over these last fifty years, those seeds have germinated and those eggs have hatched – and we have harvested the products of both; but our harvests of hatred, division, inequality, corruption, incompetence, xenophobia and bare-faced lies have exceeded, one hundred fold, our harvests of nationhood, equity, progress and integrity in public life. The progeny of the seeds of weeds and the eggs of snakes and toxic insect plagues have come to define us as a nation!

The Lancaster House Conferences that preceded our independence were not an exercise in constitution-making – they were an exercise in ethnic brinkmanship that we see to this day, and that we have refused to outgrow. It was a battle between the ‘big tribes’ and the ‘small tribes’, a battle that the small tribes appeared to win – at least for a while – with the writing of ‘majimbo’ into the Independence Constitution. The virulent weed of tribalism was planted and well-watered.

Dead at birth…

But as we now know from the writings of insiders, that Constitution was dead  even before it lived. The ‘big tribes’ accepted majimbo to move the independence process forward – with the intention of killing it the moment they were in power as their superior numbers guaranteed that they would be. And this they proceeded to do – under the guise of consolidating national unity, enabling the new nation to move forward ‘as one’. BUT that national unity was never the intention of killing majimbo, or creating a de facto one party state. An Imperial Presidency, sitting cozy above the law, subject to no checks or balances was the goal – and this goal was resoundingly achieved. The egg that would hatch into the viper of dictatorship was laid!

In that first fifteen years, the nation enjoyed great economic progress – President Jomo Kenyatta having wisely looked West rather than East: hence nurturing entrepreneurship and innovation, and individual rewards for individual hard work. Africanisation of both the civil service and the mid- to low level economy progressed apace, while the upper-level economy was slowly transformed through parastatals. But with these seeds of wholesome grain, were also planted various weeds and eggs. Africanisation of the retail business was really ‘tribalisation’ of the same, while Africanisation of the public service was really creation of jobs for loyal ‘home boys’. The unholy union of these two begat the monster-child of ‘crony capitalism’ which fed and sustained the corruption industry, which rapidly became the pre-eminent sector of the economy.

Our new-found capitalism was particularly generously applied to matters of land, creating the community disaffections that continue to haunt the nation today; nurturing deep resentments across generations on the one hand, and on the other hand subjecting other ordinary citizens to periodic intense pain and suffering because they are ‘aliens’ and ‘outsiders’ in property that they legitimately acquired and paid for! ‘Extra-ordinary’ citizens that acquired property by the same legitimate means, and just as often by nefarious means, are of course not subjected to the same grief and agony!

With Sessional Paper No. 10 of 1965 – African Socialism and its Application to Planning in Kenya, we laid yet another viper egg: state-sanctioned skewed development of the nation. We classified some parts of the country as marginal and unproductive, while others were classified as productive and high potential. We resolved that ‘limited’ state resources would be invested in the productive and high potential parts of the country – and God would take care of the rest! We institutionalised a tiered citizenship, depending on whether one was from a marginal or a high potential region! The toxic tree of regional inequalities was strategically planted, sheltering the weeds of tribalism.

In that first fifteen years, political assassination, banning of political parties, detention without trial, expedient amendments to the Constitution, and use of state machinery for narrow political ends were established as ‘legitimate’ means of governance.  The pleasure and/or displeasure of the head of state with the political direction and preferences of any given ‘community’ or ‘region’ determined the distribution of state resources – and the application of often brutal state sanctions!

And the pupil surpassed the master…

Then came the transition, from the Founding Father to his mentee of many years – and for 25 years, the pupil surpassed the master! The politics of personality, sycophancy, praise-singing and ‘unswerving loyalty’ were elevated to new levels. Those that were seen as the ethnic beneficiaries of the previous era were collectively punished for the sins of that era, the only discernible sin often just being that they were of THAT ethnicity; for their seven years of fat cows, real and imagined, they would now suffer many years of deliberately-starved thin cows. The message was clear: the tribe had a single mouth, and that mouth was represented by the Head of State and hence ‘it is our turn to eat’ hatched and matured as a national political tenet.  Repression extended beyond political figures and troublesome scholars and meddlesome media right into the homes of ordinary citizens. All aspects of state and governance became an extension of the head of state, and any law that even purported to limit his reach was quickly repealed or amended. Loyalty became the primary qualification for any job, not competence. And the nation paid a heavy price!

Briefly deluded…

In 2002 we sung ‘yote yawezekana’. And the nation appeared rejuvenated, and there was new hope and world-beating optimism. And a president-elect in a wheel-chair took the oath of office in a powerful voice, and made an inspiring speech. And we knew it would no longer be business as usual; we even made citizen arrests of corrupt traffic policemen, and led by a new minister we declared KICC ‘mali yetu’ and took possession of it! But that was just a delusional respite from the tedium of the life we were used to! Whereas we would no longer be detained for holding a different political view, we would not be invited to the feeding trough either! As for that new constitution that should have been in place within a few days, it was no longer a priority! A Memorandum of Understanding? What MoU? And the stinging insect of deceit and double-speak hatched in overwhelming inglory! There was remarkable economic progress, but in the toxic political environment we did not see this. As is naturally human in these circumstances, we did not see the village beauty’s dimples but only the pimple on the tip of her nose!

And the tree of bitterness and betrayal was liberally showered with the waters of disillusionment, a volatile mix that catastrophically exploded in 2007, consuming over one thousand lives and hundreds of thousands of livelihoods.  The blood-letting culminated in a National Accord, which however created even more discord! Even the brief look into the horror-some abyss of bloody genocidal anarchy did not knock us back to our senses – we hugged the pain, we nurtured the anger, we nourished the bitterness, and we cynically mined and exploited the tragedy for political capital. And from this has emerged a digital nation with a great divide; a nation of the young that are saddled with problems of the old; a nation that is stable, but neither calm nor peaceful; a nation with immense prospects, but little hope.

Wealthy but infirm at 50…

At 50 we are a nation in need of inspirational leadership. We are in need of a leader that shall resolutely reach across the divide even as his hand may be repeatedly slapped aside. We are in need of a leader who knows he may have won the election, but he must now win all the people; a leader that will submit his personal and political ego to the good of the nation. We are in need of a leader that will do what needs doing to pull the nation together, whatever the price.

We are in need of a jubilee leader – one that will make a clean break with the past; one that will reject the old ethnic rivalries; who will dismantle and scatter the established retrogressive power structures; who will do things a different way, not just with the public relations and the window dressing, but with the fundamentals that determine whether or not the nation actually changes direction and truly heads for the stars. A leader that will show us that indeed the old is gone and we are truly a new nation.

At 50, Kenya is in need of a revolutionary, an asymmetrical thinker, a confident captain, a brave pioneer; a president that we can admire even if we do not agree with. Do we have such a leader, do we?

Dr Willy Mutunga: Heroes and heroines become villains…

Starehe Boys’ Centre is the very embodiment of that truism in policy research: that education is the greatest equalizer. It is the one instrument that rudely but happily interrupts inter-generational transmission of poverty and inequality traps, as well as well as dismantling inherited class barriers.

Bred to lead: Starehe Boys' Centre students celebrate after the release of KCSE results

Bred to lead: Starehe Boys’ Centre students celebrate after the release of KCSE results

We must rescue talent from the graveyard of disadvantage or poverty. The gift of giving, the duty of serving – living for a cause larger than self, are the true marks of achievement. And talent without ethics; skill without values; and knowledge without conscience are the greatest curse that can ever befall an individual, society or nation. Just like natural resources have wrought immense suffering to undemocratic societies, so have natural talents to unconscionable individuals and communities.

The crisis facing this country in its governance and development agenda is the crisis of the elite, and the rather grotesque inversion of values: where truth is subverted, relative and even identity-driven; evidence is gutted at the slightest hint of inconvenience (Hilary Clinton has lately called this operating on an evidence-free zone); heroes and heroines become villains – those who do right are made to play defense rather than offense; and spivs command a disproportionate voice and space.

An elite or a society that rises on its feet to applaud the disregard or dishonor of an agreement and praises it as strategy, instead of condemning it as betrayal, is both sick and bankrupt. There is an over-supply of the elite, and an undersupply of values, ethics, or conscience. Whereas monetized measurements put 45% of Kenyans below the poverty line, I guess ethical instruments would have well over 90% of Kenyans living below the poverty line of values, our renowned, yet evidently suspect claim to religious piety as a nation notwithstanding. Our elite suffers from an anemic inversion of values: constantly deploying their enormous talent, skill and knowledge to aid and abet national regression projects.

Our educational system, particularly national schools such as Starehe, continues to produce the country’s political, economic, judicial, administrative elite. You are part of Kenya’s figurative ‘talented tenth’. This is the elite that runs this country and therefore must take responsibility for the country’s not-too-impressive development and governance outlook that we see 50 years after independence. The quality of our development and governance, as with all other countries all over the world, is directly a reflection of the quality of our elite. Tribalism, corruption, underdevelopment – the main scourges that afflict our country, all products of institutional dysfunctionalism – are not a creation of the masses. They are the political, economic and social toys invented by the elite for self-promotion and private gain. The unholy alliance between the two occasionally exists, but the architects, perpetrators and beneficiaries in chief are the elites.

We have an elite that ‘speaks in tongues’ – civil in the formal civic space, but quite native in motive, values, ambition, and operation. An elite that is as vernacular as the next opportunity permits, but one which cloaks its irredeemable attraction to the ‘natal centre’ with sophisticated gadgetry and technology talk. Elitism that is ephemerally modern but innately nativist. In times of crisis, and in times of opportunity; when principle is on trial or when opportunism is on offer, this elite always gravitates to the womb. You cannot build a modern, democratic society if a society’s elite has not risen to its historical mission and realize that society’s transformation is usually led by, figuratively speaking, by a talented tenth – the elite. Thinking about our situation today, the immortal words of William Butler Yeats in the poem, The Second Coming, come to mind: “Things fall apart; the centre cannot hold… the best lack all conviction, while the worst are full of passionate intensity.”

Who are the best? In this room, ladies and gentlemen, are Kenya’s elite. They have not only had a great education but have also been raised in a place of great culture and tradition. Whether you walked to school, travelled by train or bus, only flew home once a year on the army’s charity Christmas flight, you learnt to treat your classmate as your brother, your dorm mate as your confidant, your club mates as your friend. You were all treated as equals, regardless of tribe, home region or economic standing. By virtue of your high school education, you all entered into the 33 per cent bracket of those who have attained that level of education (according to the Kenya Bureau of Statistics Report, 2013). Many of you had the door to university education opened up as well, and the Starehe name continues to open many other doors to this day.

We always argue that it is the masses that choose tribal and corrupt leaders. However, how can they choose differently when that is the only choice they are practically given? I see it in the Judiciary where the ethnic leadership of a public or private institution is becoming a fairly accurate predictor of the ethnic identity of the lawyer that will be on record prosecuting the case! In most cases these two would have attended some national school, and I am sure those were not the values that they were taught. Isn’t it depressing, shouldn’t we be embarrassed, aren’t we naïve to expect us to progress as a nation when the leaders of the country, the academic, economic, legal, business and political elite of this country, cannot trust anyone outside their tribes in the most sensitive of cases?

Peter Ekeh, a Nigerian Professor of Political Science, has described the problem as one of the crisis of the two publics. The first public is that of family, clan and tribe; the second, the rest. We set different standards for different publics. Looking at the problem of corruption, how do we as the elite react? If it is someone from the first public, we look for all sorts of reasons why they should be excused. If it is the rest of the public, we rightly call upon them to carry their own crosses. Principle is variable and malleable, depending on the ethnic identity of the culprit. Identity has become the new penal code on the basis of which guilt and innocence is determined and pronounced.

Most of you think this is only a vice in the public sector; it isn’t. The private sector is even worse in terms of employment, promotion, and award of bonuses. Ethnic favouritism is rampant, ethnic concentration in recruitment prevalent and we must own up and style up.

These inverted values play out even more when we look at how we treat whistle blowers in this country. One who exposed the county’s largest corruption scandal, David Sadera Munyakei, died destitute in 2006, after being sacked from Central Bank of Kenya and remaining largely unemployed afterwards. Another was hounded and subjected to investigations for buying cheaper cars. One other was exiled both from country and community for daring to raise corruption issues. Many in the private sector have been sacked, denied promotion and bonuses for doing the right thing. Very close to home, we have seen a maddening rush to seek ethnic refuge whenever a corruption matter is raised. We cannot allow a country to have corruption as the fourth arm of government – the most powerful and the one that controls all the other arms. And corruption’s corrosive effect on democratic institutions and a country’s development become even more vile and pronounced when it intersects with ethnicity.

The Constitution of 2010 created many institutions that are now fighting for space in the public sphere. The Salaries and Remuneration Commission has sparred with both the National Assembly and the County Assemblies; Parliament has fought itself and reportedly, continues to do so with Senators and Members of the National Assembly openly differing about the importance of the two Houses. The Judiciary has also not been spared and has seen its independence threatened by many forces.

All these institutional contestations may be a necessary messy part of our democratic evolution as institutions attempt to establish the right constitutional equilibrium in their relationships under the new constitutional order. However, these contests must take place within and under the law for we are a country that professes the rule of law. No institution, no individual and no agency is above the law, and as Montesquieu, the French philosopher, memorably proclaimed several centuries back, ‘Be ye ever so high, the law is above you’.

We must choose whether we want to be a country governed by the rule of law as written in text and as pronounced by courts, or rule by man and might as is exercised by men. The former is what I see in the Constitution, 2010 and in Vision 2030. You, as the elite, must speak out when the rule of law is threatened. You must not let ethnicity or private gain colour your principle, professional calling or values. Principles and values, and on issues so central and so clear on humanity’s historical advancement such as these, have no vernacular editions. The Judiciary learnt in 1988 that even after so many years of ingratiating with those in power, the gift was the removal of the tenure of judges and the Attorney General. The ethnic identity of those judges did not matter. And neither did their business relationships. So principle pays; absence of it is costly to all.

What have we done as the elite in this room, as old Starehians? Those in the public sector have either shied away from the discussion or gone back to the two publics for answers. Others have dodged the public interest and policy questions and chosen to create private solutions for public problems. When the health sector fails, we go to private hospitals; when public education systems fail — our children attend private schools and universities. Remember always the engraving on the Assembly Hall door: To those to whom much is given, much will be required.

The forces of social evil and inequality today are so strong that we need an equally strong voice in the opposite direction. That is what the masses need — a constant dissenting but progressive voice, a clarion call for greater social change and transformation. We need to join forces for good. That is why the focus of such alumni organisations as this one must change. We must start banding together for public social change, not only for private endeavours such as exchanging business contacts.

Raise your voices above the din, on the podium of an esteemed institution, a respected institution. Speak up against the culture of crises that we have all become so accustomed to. Eliminate the poverty of ambition and values. Reframe the definition of achievement beyond self and personal to concern about your constituency, your county, your country’s achievement. The ‘talented tenth’ like you are not ornaments for ethnic display and admiration in exchange for ethnic legitimacy and ethnic patronage; you are national gems needed in the civic space. The talented tenth, like you, are not expected to navel gaze in self-satisfaction, but must see yourselves as the instrument and force of good for social transformation. Reverse the inversion of elite values as a precondition for society’s and personal development.

In the words of the Starehe motto: Natulenge Juu! Note the plurality: it is not Nanilenge juu – society is your business.

This article is reprinted verbatim from ‘The Star‘. Dr. Willy Mutunga is the Chief Justice and President of Supreme Court of Kenya. This is an excerpt of his speech presented during the Old Starehean Society annual dinner on November 20, 2013.

Dictatorship is creeping up on us slowly….

A reproduction of a powerful opinion piece by Macharia Gaitho in the Daily Nation:

Advocate Ahmednassir Abdulahi Advocate interviews advocate Rosemary Atieno Okumu at the Supreme Court on the 25th of June 2012.

Advocate Ahmednassir Abdulahi Advocate interviews advocate Rosemary Atieno Okumu at the Supreme Court on the 25th of June 2012.

First they came for the journalists, and I did not speak out . . . because I was not a journalist.

Then they came for civil society, and I did not speak out . . . because I was not civil society.

Then they came for the judges, and I did not speak put . . . because I was not a judge.

Then they came for me . . . and there was nobody left to speak up for me.

This contemporary Kenyan re-telling of Martin Niemoller’s withering critique of Adolf Hitler’s Nazi Germany sums up perfectly our own situation.

Dictatorship is creeping up on us slowly and insidiously. From inside our fragile, individual comfort zones, we refuse to recognise the looming danger because we are not the ones targeted. It’s always those “others” that are being silenced, so that’s their problem, not ours.

Frailties

Media and NGOs are easy targets because they are a nuisance to many, especially those who will not countenance the regime being held to scrutiny.

The Judiciary is an easy target right now because of the way it exposed its own frailties with the Gladys Shollei saga. The Chief Registrar of the Judiciary fought back against the Judicial Service Commission onslaught by enlisting reactionary political forces keen to sabotage the emergence of a reformed Judiciary.

Even after Mrs Shollei was forced out of office, Parliament continued an onslaught targeting JSC members, mostly combative lawyer Ahmednasir Abdullahi, who had led the battle against the registrar.

The parliamentary hearings against the JSC were a farce. The chair of the Parliamentary Committee on Legal Affairs, Mr Samuel Chepkonga, was openly partisan when Mrs Shollei took her case to him, and also in the way he ran the hearings.

The outcome was predictable, given the Jubilee dominance in the House and lack of an effective opposition.

The composition of the team President Uhuru Kenyatta appointed to investigate the suspended Judicial Service Commissioners is telling. Conservative cheerleaders with a chip on their shoulders such as Mr Justice Aaron Ringera and Ms Jennifer Shamalla probably make the impending hearings a waste of time.

More enemies than friends

One can comfortably predict that the goose is cooked for some of the suspended JSC members.

But then who will mourn for Mr Ahmednassir? The campaign to neuter the Judiciary is premised on the fact that in the crosshairs is a man who has made more enemies than friends in shaping the new-look court.

Mr Ahmednassir stood out during the confirmation hearings and interviews as the JSC member who had done his homework. He was able to bring out the failings and shortcomings of the applicants who did not measure up, and to ease in those who met his favour.

The Jubilee campaign watched with horror the composition of an independent Supreme Court led by Dr Willy Mutunga from the ranks of what they baptised ‘Evil Society’, and the exit of many Kanu-era judges who invariably toed the establishment line.

To Jubilee’s pleasant surprise, however, the Mutunga Supreme Court unanimously upheld President Kenyatta electoral victory. Mr Ahmednassir played a prominent role in the petition as lawyer for the Independent Electoral and Boundaries Commission. His address to the court focused not so much on the legal niceties, but in scornfully telling the judges that they had no choice but to find for his client.

In subsequently going for Mrs Shollei, Mr Ahmednassir might have reminded the Jubilee establishment that it had in its midst a monster it could not control.

The Judicial Service Commission, however, is not the ultimate target. That is just a phase in a campaign aimed at re-establishment of a pliant, Kanu-era court that will dance to the whims of State House.

Once the independent media is neutralised, ‘evil society’ silenced and an independent Judiciary crippled, the stage will be fully set for reincarnation of the Kanu regime clothed in digital colours.

The late President Jomo Kenyatta must be looking on with satisfaction, and President Moi purring with satisfaction. The children of Kanu are in charge.

A failed state my foot…

Is Kenya a failed state? Not by any stretch of imagination! And it is extremely ridiculous that we should all be getting seriously hot under the collar because it has been suggested that we are – a suggestion that is in fact merely the subjective interpretation by our local media and partisan netizens of criteria defined by, statistics gathered by, and analyses conducted by the think-tank Fund for Peace and the magazine Foreign Policy.

Because we have had such an emotive response to an essentially wrong interpretation of the facts, we have completely failed to do a rational evaluation of the said criteria and the scores our country has been awarded for each criteria. Our response has been so heated we have completely failed to assess whether those criteria are reasonable – and whether the score we have been awarded is justifiable. We have quickly sank into the oh-so-tiring claims of a western conspiracy, and neo-colonialism, and ‘why is it that it is African countries that are ranked bottom?’

Now, let us try be rational about this – let us try to evaluate the whole thing with our minds rather than with our national pride and partisan ethno-political inclinations. The ranking is based on the summation of the scores of 12 indicators of state vulnerability – emphasis is mine. Of these indicators, 1 to 4 are social, 5 and 6 are economic, and 7 to 12 political. For each indicator, the ratings are placed on a scale of 0 to 10, with 0 being the lowest intensity (most stable) and 10 being the highest intensity (least stable). Hence, the total score – indicating the state’s vulnerability – NOT failure – is the sum of the 12 indicators and is on a scale of 0 to120. The higher a state scores, the more vulnerable it is to state failure. The score does not say any particular country is a failed state, but rather indicates the likelihood of it descending into a failed state should the hazardous risks it is subject to become reality – a state may have a very high score indeed and STILL NOT BE A FAILED STATE!

Failed States Index 2013

Failed States Index 2013

All countries in the red category (Alert, Failed State Index of 90 or more), orange category (Warning, Failed State Index of 60 or more), or yellow category (Moderate, Failed State Index of 30 or more) display some features that make parts of their societies and institutions vulnerable to failure. Some in the yellow zone may be failing at a faster rate than those in the more dangerous orange or red zones. Similarly, some in the red zone, though critical, may exhibit some positive signs of recovery or be deteriorating slowly, giving them time to adopt mitigating strategies that would then prevent or pre-empt state failure.

So, how did Kenya perform? And was the indicated performance reasonable? Let us see:

Failed States Index 2013 - Kenya

Failed States Index 2013 – Kenya

Social indicators

  1. Demographic pressures: We scored 9.1– a very high score indeed, indicating our vulnerability in this respect. This indicator measures the pressures deriving from high population density relative to food supply and other life-sustaining resources. It evaluates pressure from human settlement patterns and physical settings, including border disputes, ownership or occupancy of land, access to transportation, control of religious or historical sites, and proximity to environmental hazards. It includes an evaluation of the proportion of ‘youth’ in the population – a large ‘youth bulge’ being an indicator of potential socio-political unrest. As a country we most certainly have serious issues of land ownership associated with historical events; we are classified as a water-scarce nation; we have perennial border disputes – especially between agricultural and pastoral communities and different politico-administrative units; and our water catchment areas are under severe threat while our premier farming lands are being gobbled up by urban sprawl. Over 73% of our 43,500,000 people are aged below 30 years because of rapid population growth. That score is in my opinion fair.
  2. Massive movement of refugees and internally displaced persons: On this we scored 8.7 – another high score. This indicator measures the forced uprooting of communities as a result of random or targeted violence and/or repression, causing food shortages, disease, lack of clean water, land competition, lack of public housing, and turmoil that can spiral into larger humanitarian and security problems, both within and between countries. We most certainly have had IDPs in the past one year, and still have them – we are indeed creating more with the ongoing inter-clan strife in Mandera, and previously with the intercommunity conflict in the Tana. We have hundreds of thousands of refugees from other countries. Need I say more?
  3. Legacy of vengeance-seeking group grievance: We scored 9.0 on this indicator, which evaluates group disaffection based on recent or past injustices, which could date back centuries. This includes atrocities committed with impunity against community groups and/or specific groups singled out by state authorities, or by dominant groups, for persecution or repression and institutionalized political exclusion, read ‘marginalisation’ in Kenyan parlance. It also takes into account public scape-goating of groups believed to have unfairly acquired wealth, status or power – normally through “hate” radio, pamphleteering and stereotypical or ethno-nationalistic political rhetoric. Does that sound like phrases that were plagiarised from the Waki Report and the TJRC Report? Is it sounding like 41 vs 1, or 1 vs 41 or more recently, 40 vs 2 or 2 vs 40? Is it sounding eerily like Kenya, right down to the threatening leaflets and hate-speech on Tribe FM? We most certainly deserve that score!
  4. Chronic and sustained human flight: On this we scored 7.8 – a modest score compared to the other three. This indicator measures both the ‘brain drain’ of professionals, intellectuals and political dissidents and voluntary emigration of ‘the middle class’. It includes the growth of exile/expatriate communities. That we have suffered severe brain-drain goes without saying. At some point, I understand there were more Kenyan doctors in public hospitals in Southern Africa countries than there were Kenyan doctors in public hospitals in Kenya! And there is a huge number of Kenyan nursing officers in Europe and the United States. That we have a huge Kenyan expatriate community in the West is also fact. That emigration is a dream of many, particularly young, Kenyans is also a fact. I think this score is a little high – but represents a true picture of the national trend.

Economic indicators

  1. Uneven economic development along group lines: On this we scored 8.3. This indicator measures marginalisation and perceived marginalisation as determined by group-based inequality in education, jobs, and economic status. It also measures group-based poverty levels, infant mortality rates and education levels. Again, does it not sound like our own TJRC report? Does it not sound like all those tirades, both fact-based and purely fictional, that one reads in Kenyan blogosphere? Isn’t it patently obvious when you think of Kenya north of Isiolo and east of Mtito Andei? Isn’t it the foundation on which we have built our no-holds-barred, take-no-prisoners, it-is-our-turn-to-eat politics? Once again, we deserve that score in my opinion.
  2. Sharp and/or severe economic decline: Our score here is 7.6. The indicator measures the progressive economic decline of the society as a whole using per capita income, GNP, debt, child mortality rates, poverty levels, and business failures. It measures drops in commodity prices, trade revenue, foreign investment or debt payments. It factors in collapse, decline or devaluation of the national currency and a growth of hidden economies, including the drug trade, smuggling, and capital flight. Failure of the state to pay salaries of government employees and armed forces or to meet other financial obligations to its citizens, such as pension payments, is also included.  We are told that in the last ten years, absolute poverty levels in Kenya have declined to well below 50% of our population and our economy has grown significantly. But there have also been perpetual complaints that this growth has only been felt by the upper economic echelons of society – while the bottom ranks have faced the same level or even increased levels of economic difficulty. Our national debt has also grown stupendously, while we have suffered decline in foreign direct investments. The Kenya shilling has suffered a stiff market-driven loss of value – at some point precipitating a parliamentary inquiry. Several well-known businesses have collapsed, and a number have relocated. The government is obviously unable to meet commitments to increase salaries for teachers. However, based on government figures for economic growth, this is certainly too high a score for Kenya.

Political indicators

  1. Criminalisation and/or delegitimisation of the state: On this we score 8.3. It measures endemic corruption or profiteering by ruling elites and resistance to transparency, accountability and political representation, including any widespread loss of popular confidence in state institutions and processes. We have most certainly suffered this – think Goldenberg, Angloleasing, Triton, the maize-scandal, etc – all of which remain unresolved. Indeed there are those that justifiably believe that ‘kleptoctacy’ accurately describes our system of crony capitalism! Think of our Members of Parliament who refuse to accept the decision of a constitutional commission, and impudently attempt to rescind it. Think of the half of the country that may have moved on, but do not feel that the government of the day represents them! Think of the confidence shock suffered by the Supreme Court and the judiciary in general as a result of the ruling on the presidential election petition by the former and the Goldenberg case by Justice Mutava.
  2. Progressive deterioration of public services: This indicator measures disappearance of basic state functions that serve the people, including failure to protect citizens from terrorism and violence and to provide essential services, such as health, education, sanitation, and public transportation. It also includes use of the state apparatus and resources mainly for the benefit of agencies that serve the ruling elites, such as the security forces, presidential staff, central bank, diplomatic service, customs and collection agencies. On this we score 8.1 – no doubt attributable to the endemic insecurity (including the recent massacres of police officers), the credibility crisis facing our education system, and the death traps that are our public hospitals. And of course public transportation is largely restricted to the often-traumatising matatu experience. Think of the increasingly prevalent feeling that this is a government of the elite, by the elite, for the elite!
  3. Widespread violation of human rights: On this we score 7.1 – in fact our best score. The indicator measures the emergence of authoritarian, dictatorial or military rule in which constitutional and democratic institutions and processes are suspended or manipulated, often accompanied by outbreaks of politically-inspired (as opposed to criminal) violence against innocent civilians. It includes a rising number of political prisoners or dissidents who are denied due process consistent with international norms and practices, and widespread abuse of legal, political and social rights, including those of individuals, groups or cultural institutions (e.g., harassment of the press, politicisation of the judiciary, internal use of military for political ends, public repression of political opponents, religious or cultural persecution.)  That this is our best score is a true reflection of the great strides we have made in the area of human and people’s rights, but that past violations remain unpunished is a blight on this record. We still have some ways to go though – especially in the protection and facilitation of constitutionally guaranteed rights such as the right to peaceful assembly and protest. And we have had our share of politically-inspired violence against civilians. However, I feel the score is too high –we are firmly below 5 in this area.
  4. Security apparatus as “state within a state”: On this we score 8.1. This indicator measures the emergence of elite or exclusive praetorian guards that operate with impunity, the emergence of state-sponsored or state-supported private militias that terrorize political opponents, suspected “enemies,” or civilians seen to be sympathetic to the opposition, and an “army within an army” that serves the interests of the dominant military or political clique. The emergence of rival militias, guerilla forces or private armies in an armed struggle or protracted violent campaigns against state security forces would also boost the rating in this category. I was baffled as to why we would score rather highly in this category, but then I remembered that we do in fact have organised gangs that get politicized at certain times, that our police or organised elements therein carry out extra-judicial executions without sanction. But again, the score here is a little too high – I dare say we are below 5 on this one too.
  5. Rise of factionalised elites: On this we have the almost perfect score of 9.0 – and we richly deserve it! This indicator measures a fragmentation of ruling elites and state institutions along group lines. Use of aggressive nationalistic rhetoric by ruling elites, especially destructive forms of communal irredentism or communal solidarity (e.g., “ethnic cleansing”, “defending the faith”). In just our recent elections, we witnessed the powerful re-emergence of tribal organisations such as GEMA and KAMATUSA for purposes of political mobilisation, and the rise of ‘Councils of (tribal) Elders’ as a powerful tool for inter-ethnic political negotiations and deal-making. We heard calls of ‘supporting our own’, and ‘defending our own’ and we saw threats of ‘political war’ against those that did not support the acknowledged ethnic chiefs. On this score, surely there can be no debate!
  6. Intervention of other states or external factors: On this we scored 8.5.  This indicator measures military or paramilitary engagement in the internal affairs of the state by outside armies, states, identity groups or entities that affect the internal balance of power or resolution of the conflict; as well as intervention by donors, especially if there an over-dependence on foreign aid or peacekeeping missions. We probably scored rather highly on this as a result the ICC intervention, necessitated by our continued sad failure to establish credible local mechanisms to investigate the events of 2007/8, and subject the perpetrators to due process. The fact that we have then regionalised and even internationalised what is essentially a domestic matter of law enforcement through various (sometimes dubious) diplomatic initiatives cannot have helped our case at all. But again, I think this is a rather high score.

All in all, these scores indicate a fragile but definitely functional state. A fragile state is one that is susceptible to crisis – one that could easily collapse in a perfect storm of related misadventures. It is a state that is vulnerable to internal and external shocks, including political conflict. Its policy, statutory, regulatory and institutional arrangements embody and even preserve the conditions that foster the fragility.  In economic terms, these could be policies, statutes (including property rights), regulatory mechanisms and institutions that sustain extreme inequality in wealth, in access to land and in access to the means to make a living. This situation leads to low economic growth rates and in the extreme may cause stagnation and even regression. In social terms, the institutions of a fragile state may embody extreme inequality or complete lack of access to health, education and other socio-economic infrastructure and utilities. In political terms, these institutions may entrench exclusionary ethnic, religious, or regional coalitions in power, or cause extreme factionalism. In legal and constitutional terms, the institutional arrangements of a fragile state are often ambiguous or vague – capable of numerous and contradictory interpretations that are expediently exploited by various factions. This may lead to inter and intra-institutional conflicts, encourage arbitrariness, and the exercise of personal fiat – all likely leading to frustration and even instability.

That our own news outlets would conclude that the Failed State Index scores for Kenya indicate a failed state is more a reflection of their own professional and ethical failures than it is an indication of the status the Kenya state or the Failed States Index. However, to also dismiss the findings as meaningless, or biased or neo-colonial or anti-African is to show ones severely blinkered outlook – a head-in-the-sand attitude that has for five decades prevented us from effectively and conclusively addressing fundamental issues that threaten our statehood. We should treat the FSI as a reasonable, even if not entirely empirical, diagnostic tool that can help us get better and better in our continued march to a more perfect nationhood.

I gratefully acknowledge resource materials and insights utilised for this blog article from both the Fund for Peace and Wikipedia.