Thursday, August 28, 2014

A Constitution For All

A version of this article was previously published in the Star.

This week marks the fourth anniversary of the promulgation of the Kenyan constitution.  The significance of a country’s constitutional history cannot be overstated, for it is as a reminder of where the nation has come from and the lessons it has learnt. On this anniversary, Kenyans could do worse than take some time to reflect on the process of constitution-making and on the document that process has produced.

Much of the last quarter century of our collective history was spent trying to undo the original sin committed at independence. In that time, we have been trying to reverse the dismantling of the majimbo constitution, concentration of power in the person of the president as well as the dilution of the bill of rights. The terms we use may be different but the arguments are still largely the same ones our parents and grandparents had. The concerns over marginalisation and exclusion remain.

In a paper titled Amending the Constitution -Learning from History that he presented at an International Commission of Jurists conference in 1992, our current Attorney-General , Dr Githu Muigai, noted what had happened in the first decade following independence: "The colonial order had been one monolithic edifice of power that did not rely on any set of rules for legitimization. When the Independence constitution was put into place it was completely at variance with the authoritarian administrative structures that were still kept in place by the entire corpus of public law. Part of the initial amendments therefore involved an attempt - albeit misguided - to harmonise the operations of a democratic constitution with an undemocratic and authoritarian administrative structure. Unhappily instead of the latter being amended to fit the former, the former was altered to fit the latter with the result that the constitution was effectively downgraded."

Effectively, as the Truth Justice and Reconciliation Commission noted in its report, the colonial state endured. Thus Jaramogi Oginga Odinga could declare “Not Yet Uhuru” and inspire the two-decade long struggle for the “Second Liberation” that started in 1990 and gave birth to the current constitution. And while it was very much a struggle to tame the “authoritarian administrative structure,” it also became conflated with notions of good governance, accountability and transparency, which made Kenya part of a global trend following the fall of the Berlin wall.

But lately, these realities seem to have taken a back seat to the struggle among politicians for governance arrangements that would suit them. There appears to be a dangerous sentiment that the underlying causes were either resolved by the promulgation of the constitution or that they can be safely swept under the carpet of “accept and move on.” In an article published over the weekend Dr Nzamba Kitonga, the former Chairman of the Committee of Experts that drafted the 2010 constitution, essentially admits that the process was hijacked by the political elite and details how, following the mind games played at Naivasha, the committee was “advised not to tamper with the pure presidential system agreement and several other new clauses.”

So much for a “people driven constitution”. But Dr Kitonga goes ahead to legitimate this usurpation, privileging the arrangements for electoral losers and reducing the role of “Wanjiku” in government to cheering on the sidelines. “In the rural areas wananchi are also grumbling,” he asserts.  “They say they no longer “feel” the government. They long for the days when an MP/minister would visit the grassroots to be “with them” and explain government policies at their level and in their grassroots language — including dancing, singing, cheering and generally inspiring the crowd.”

And so it is today that our current constitutional debates seem to be more about accommodating politicians and their greed and relegating the role of the people to performing traditional gigs for the elites entertainment. Governance has taken a back seat.

There has been little outrage so far this week when Nairobi County Deputy Governor revealed that when the defunct Nairobi Metropolitan Ministry spent nearly Kshs 437 million installinga camera and traffic lights system meant to tackle the capital’s notorious traffic jams, it neglected to include the synchronisation software that would actually make the system work. The fact that the Pakistani city of Peshawar was reportedly going to spend the equivalent of less than Kshs 20 million installing 260 cameras and three control rooms to monitor them while we spent more than twenty times that amount installing 51 (or that we eventually only installed 42 for the same cost) does not seem to bother most people.

The fact is, as the above example demonstrates, despite the change in constitutions the rapacious colonial state endures. Sadly, we have divorced our governance arrangements from the role they are meant to play in preventing such irregularities. Once again the constitution is in danger of being downgraded to fit our corrupt circumstance instead of being the mould into which our governance fits.  So today, we would much rather go to the streets to protest theft of political power (which is really only the opportunity to “eat”) than to protest the impoverishment and marginalisation that this has brought. I fear we are slipping back into the mould where we would much rather starve with one of our own in power, than set up systems that ensure all have square meals. We are still content with the symbols of democracy and “development” while forsaking the substance. All this reveals, as one of my friends put it, “how hollow the transformation wrought by the new constitution.”

It has been said time and again that constitutions live, not on paper, but in the hearts of the people. If they are to be any good, they have got to work in the interests of the many, not of the few. Our political elites have for too long enjoyed too many seats at the constitutional table and their voices and ambitions have for too long been allowed to crowd out the call from the masses for accountable governance that responds to their needs, that defends them from the indignities of deprivation and poverty, protects them from wanton violence, treats them as human beings everywhere deserve to be treated, ensures they have the opportunity to actualize their dreams and that offers a better future for their children.


As we mark the fourth anniversary of the promulgation of our constitution, and as we debate the possibilities and opportunities of amending it, it is my desperate –some might say desperately unrealistic– hope that it is the welfare of wananchi, not that of the current crop of wenyenchi, that will be the uppermost consideration animating our conversations.

Monday, August 25, 2014

Why Are We Waiting For Ebola?

A version of this article was previously published in The Star.

One thing’s for sure. Ebola is not a particularly easy disease to catch. Derek Gatherer, a virologist at Britain’s University of Lancaster, was recently told Reuters that the virus is not "super-infectious”. In fact it is much less easily passed on than measles. You do not get it just by being in the same room with, or on the seat next to, someone who is infected. It is spread through direct contact with the bodily fluids of an infectious person. However, by the time they are infectious, victims are typically very ill, many with scary symptoms like bleeding through the eyes and ears. In short, you can spot them from a mile off and take precautions. So why is it killing so many people in West Africa and why is it scaring Kenyans, who are on the other side of the continent?

According to the book Compassion Fatigue: How the Media Sell Disease, Famine, War and Death by Susan D. Moeller, “the chief means of transmission in its major outbreaks have been either surgery and routine lab works performed under conditions of primitive hygiene or close contact with desperately ill patients or the dead.” The virus preys on dangerous superstitions and unsanitary customary practices in the handling of dead bodies as well as unsanitary conditions and practices in medical facilities. Sad to say, both of these are not exactly unheard of on our continent.

The majority of those who get infected either do not know enough about the disease to protect themselves, or should know better and somehow don’t. It is ignorant (and I do not mean this in a disparaging sense) villagers and negligent medics who seem to bear the brunt of the disease. Ebola exploits the chronic weaknesses in economies and healthcare systems across the continent and the government policies that perpetuate them.

According to a paper by Adam MacNeil and Pierre E. Rollin, outbreaks of Ebola (and its deadly cousin, the Marburg virus) “are components of impoverished conditions.” They note that outbreaks commonly occur in rural and highly remote areas of central Africa which house some of the least developed locations in the world. They cite the fact that more than two thirds of the population in Gulu, Uganda, the site of the 2000 Ebola outbreak, live more than 5 km away from the nearest health facility.

Today, the most affected countries, Liberia and Sierra Leone, have had their healthcare systems decimated by decades of looting and civil conflict. Fourteen years of intermittent civil war destroyed much of Liberia’s public health infrastructure and despite recent improvements, one of the country's health administrators says “these are still too fragile, and don't have the capacity to deal with an outbreak of a problem like Ebola."

This weakness manifests itself in the high number of infections among healthcare workers. According to WHO, this number has reached 170 with at least 81 deaths. The lack of supplies, including basics such as gloves, as well as lack of knowledge or experience in using protective equipment is to blame for many of the infections. And this is down to a lack of government investment in health. At 16.8 per cent, the Liberian government’s contribution to total health expenditures is one of the lowest in the world.

What does this have to do with Kenya? Well the Kenya Service Availability and Readiness Assessment Mapping is the first Health Services Census to be conducted in Kenya and provides, according to Dr Francis Kimani, the Director of Medical Services, "the most comprehensive picture of the Health Sector in Kenya to date." One might add that its findings make for some depressing reading.

Generally, it says, less than 6 in 10 of all health facilities in the country are ready to provide the Kenya Essential Package for Health –a sort of standardized comprehensive package of health services. Less than half have the basic amenities to provide services. And while two-thirds half the basic equipment required, 59% do not have essential medicines. With regard to communicable diseases, only 2% of facilities are providing ALL KEPH services required to eliminate communicable conditions.

Further, more than a third of all hospitals in the country do not have safe procedures for disposing of sharps (injections, razors and needles) or even infectious waste. A similar number did not have proper storage facilities for sharps or infectious waste, lacked soap and water and do not have written guidelines on standard precautions as required.

The Standard cites a study carried out last year by the ministry and the Kenya Medical Research Institute at the Level Five Rift Valley Provincial Hospital in Nakuru which showed that health workers carelessly expose themselves to unnecessary injuries and contaminated fluids in hospitals, and claims 51 per cent of medical staff are untrained on the proper use of sharp hospital equipment. So though the government might be investing in “some 5,000 special personal protective gear,” as Armand Sprecher, the medical adviser to Doctors Without Borders for hemorrhagic fever, says, even full protective gear might be useless if “you stick yourself with a needle.”

The fact is the rush to train up our medical staff now in what should be the basics reveals the rot at the core of the system. When medical staff go unpaid for months, as they recently did, we have to ask what this tells us, not only about the potential problems with our new governance arrangements, but how these are impacting the availability of healthcare to the population (several people have died as a result of the go-slow that followed).

While there may be no cure for Ebola, many experts say early and intense medical care can greatly improve a person's chances of survival. According to Dr Lee Norman, the fact that the disease’s mortality is much higher in remote areas “reflects the fact that if more care is given and care is given early, the more survival improves." Therefore, prior investment in properly equipped hospitals, good doctors and working systems would not only prevent the spread of the disease, but even keep those infected alive.

Take the example of Michelle Barnes. After contracting the Ebola-like Marburg virus during a trip to Uganda in 2007, she travelled back to the US where she fell ill. Though without a diagnosis for what was ailing her, she was treated, in her words, by “more than 220 health care professionals ... over 12 days” after which she was able to go home. Though she had interacted with many people on her flight back to the US as well as before she was admitted to hospital, none of them got sick. She attributes this to the fact that people in the US “have access to more sophisticated health infrastructure, better information about the spread of disease, and practices that more effectively contain infections.”

In Nigeria, Lagos state Governor Babatunde Fashola also emphasized the importance of good basic care in preserving the lives of Ebola patients. "This is a virus that will run a maximum of 21 days. What we must do is people who show some signs of illness should come in very early so that we can continue to hydrate them, give electrolyte balance so that their nervous system do not go into shock and wherever it is necessary to provide antibiotics for patients; and their body can fight the virus which in the event last no longer than 21 days."

Again, it seems to come down to education and investment in basic medical infrastructure. Uganda, which has suffered several Ebola outbreaks since the turn of the century, has recorded success in tackling them using public education campaigns as well as developing an efficient system for faster medical response. It has invested in educating both healthcare workers and the general public on Ebola, even creating an SMS-based health monitoring system known as mTrac that helped with the last Ebola outbreak (our own Silicon Savannah types might want to take notice).

However, Dr Wadembere Ibrahim Jangu of Makerere University, School Of Public Health, in 2012 called for sustained investment in community education as well as equipping health centers with supplies and basics like hand washing facilities, as well as monitoring their waste management and infection control measures.

“Why wait for an outbreak in order to do everything right?” he asked. Kenya, too, would do well not to wait for Ebola in order to fix its health system.

Friday, August 15, 2014

Only Kenyans can save Kenya

A version of this article was published in The Star

Before last weekend, you’d probably never heard of Hussein Farah Wachu. His is not a famous name, though perhaps it should be. A survivor of the infamous Garissa (or Bulla Karatasi) Massacre of November 1980, whose wife was subsequently murdered by an off-duty policeman fourteen years later, Hussein Farah still waits for justice two decades later. He is an example of what the American author, Negley Farson referred to as the “one half of Kenya which the other half knows nothing about, and seems to care even less.”

Last week, I was reminded of the existence of this other Kenya when I participated in KTN’s show, The Bottom Line, which focused on marginalized communities. The show was held in Garissa town and it was there that I came across Hussein Farah, who for years has pursued his wife’s case and even procured a High Court ruling that his wife was indeed killed by the police and that there was an attempt to cover it up. Yet, to date, no one has been prosecuted for the crime and he has received no compensation.

Needless to say, no one has ever been held accountable for the murder and torture of hundreds of civilians during the Garissa massacre, which the Truth, Justice and Reconciliation Commission described as “a systematic attack against a civilian population [which] thus qualifies as a crime against humanity.”
I guess this should not be surprising in a country led by a President and his deputy, both accused of organising similar crimes in the more recent past. But what is surprising is the extent to which the rest of Kenya refuses to acknowledge the brutalisation and marginalisation of communities, especially tough not exclusively, in what was then called the Northern Frontier District, and at the Coast. This tendency to forget, to “accept and move on”, is best captured in the government’s stance towards the TJRC report which was published in May last year but to date remains hostage to political machinations.

That’s not how it was meant to be. According the TJRC website, “the Commission has the power, and is obligated, to publish its final report in the government gazette, and is obligated to make the report ‘widely available to the public in at least three local newspapers with wide circulation.’  While the Commission will also submit its report to the President, it is the Commission, and not the President, that makes the report public.” Now, this has already been done. The full report –minus a minority report on the land chapter (I’ll come to that presently)- is available online.

By now, the 40,000 witness statements, the most collected by any truth commission anywhere in the world, should have been handed over to the Kenya National Archives. This was the first real attempt to begin to tell the story of Kenya from the point of view of the Kenyans who lived it. So why is it not influencing our understanding of our history? Why are the contents of the report not the subject of national debate, whether in Parliament, the Senate or, perhaps more importantly, in the bars and homes where the people of Kenya assemble? After all, as the Chairman of the TJRC (who is himself adversely named in the report along with about 400 other prominent Kenyans) noted, the report was to serve as a starting point for Kenyans to realistically reassess their history and to begin to address the injustices and iniquities slowly rotting away the foundations of our nation.

“The recommendations of the Commission are binding as a matter of law, and thus are to be implemented,” was the TJRC’s interpretation of the Act that established it. The TJRC was mandated to establish an “implementation committee” to monitor and facilitate such implementation and to make quarterly reports to the public which would evaluate the efforts of the Government and others the same. Further the Cabinet Secretary for Justice should be reporting on the same to Parliament every six months, including reasons for any non-implementation.

However, none of this has happened. Some of the TJRC recommendations, like a public apology by the President and the heads of various security institutions to people like Hussein Farah, were supposed to have been honoured by the beginning of this year, and would have perhaps gone a long way in officially acknowledging the pain and beginning the process of healing. The recommended investigation and prosecution of the many politicians and government officials, many of whom still hold public office, has too been ignored.

The Uhuru administration’s standard excuse is that the report is held up in Parliament (which, by the way, wanted to arrogate itself the power to “improve” the report even though the TJRC Act gave it no such role).  However, that doesn’t wash. There has been nothing stopping the government and its agents from commencing investigations into what happened, from addressing cases like Hussein Farah’s and delivering justice to the citizens in the North East and elsewhere.

The answer to the non-implementation of this most important report is to be found in something the TJRC acknowledges: “While the Commission has more powers than any other previous Kenyan commission to ensure that its recommendations are implemented, it is only through the efforts and diligence of elected officials, civil society, and all Kenyans to monitor and ensure that the letter of the law is followed.   The Commission thus urges all Kenyans to take up the cause of making sure that the Commission’s recommendations are in fact implemented.”

The fact is we are all at fault. Our silence and wilful ignorance condemns us all. We all failed Hussein Farah and the many others for whom justice remains as elusive as ever when we refuse to stand up to State House pressure which led to the gerrymandering of the land chapter (and the subsequent issuing of a dissent from the international commissioners which was not included in the final report). We fail them when we do not insist on a prompt and full implementation of the report, including the recommendations on reparations and prosecutions.

We fail them when we do not insist on the repeal of the appalling Indemnity Act which in 1970 illegally gave retroactive blanket immunity to all government personnel for crimes committed during the Shifta war, in which the lives of up to 7000 Kenyans were snuffed out, and during which the government herded the North Eastern population into concentration camps in the same manner the colonial government had done to the Kikuyu population a decade earlier. We fail them when we accept the feeble excuses of the elite for not fundamentally overthrowing the ethos and practices of the colonial state, when we allow them to continue to entrench division, neglect and abuse.

The illusion that marginalisation of faraway places has no consequences for the rest of us is as dangerous as it is false. The alienation of substantial segments of our population, whether in the North East, the Coast, in Nyanza or even in the slums of Kibera and Mathare, has only fostered resentment, violence and a radicalized politics. This anger cannot be wished away. It is already manifesting itself in the legion of young men willing to join the terror group Al Shabaab and bring chaos and death to our streets.

In the end, it is only Kenyans who can save Kenya. It is us who must step up to the plate and demand an accounting for the past, a righting of wrongs. If we don’t, we are only setting ourselves on a collision course with reality and it is unlikely that any of us would escape that unscathed.