The Tyranny Of Numbskulls

Over the last few weeks, the country has been embroiled in an acrimonious and largely inane debate on changes to the country’s elections laws. The controversial revisions to the Elections Act seek to introduce a “complementary mechanism” to the integrated electronic electoral system for identifying voters and transferring results from polling stations to tallying centres.

Yet no one knows what this proposed “complementary mechanism” is. It not defined in the law but has been widely interpreted to refer some sort of manual backup to be employed in case the biometric and electronic devices fail as they did in 2013. That would allow voters to be checked off a physical register, basically a printout of the electronic one, and for forms containing results to be physically transported from polling stations where all the voting and counting happens, to the tallying centres where results are ultimately announced.

If such a manual system is what is contemplated, it is not clear whether it would be different from the system that was in place prior to 2013. In essence then, the law would not be proposing a backup but taking the country back to an era where elections were routinely stolen. In his presentation to the Senate, Royal Media Services proprietor, SK Macharia, noted that of the five general elections held in the multiparty era, in only one had the candidate for President receiving the most votes been declared the winner.

In fact the move to an electronic system was in response to these repeated failures, which were the trigger for the 2007/8 post-election violence. In a 2010 paper, the immediate former chair of the Independent Elections and Boundaries Commission, Ahmed Isaack Hassan, declared that “based on the recommendations of the [2008 Kriegler Report], the Commission was determined to have a fully automated electoral process, from e-registration, e-voting and finally e-transmission of results.“ While the system the IEBC eventually settled on had both manual and electronic components, it is nonetheless clear that the latter was introduced as a cure to the former. The amendments seek to reverse this and now present the discredited manual system as the cure.

And remembering that the electronic system was meant to deal with specific problems in the manual system, it is notable that there has been little articulation by the amendment’s proponents of what has been done to fix those. That the experience of the 2013 elections where the IEBC was forced to revert to a completely manual system has not featured prominently in the debate is also telling.

But what is most galling is the fact that the entire debate is conducted without benefit of an understanding of how the electoral system as a whole is meant to function and where gaps and opportunities for mischief exist. There is also much conflation of issues which leads to confusion. For example, the case for a “complementary mechanism”, not as a backup, but as a check on abuse of the electronic system is much stronger when dealing with transmission of results than with voter identification.

In transmission, the two systems could function together simultaneously, each as a check on the other, as the IEBC had apparently intended in the 2013 election, with the instantaneous results transmitted via the electronic system being provisional until verified via the physical delivery of the form. The idea was to discourage the practice of election officials disappearing en route to transmission centres and eventually turning up with doctored forms. With the information having been already sent ahead via the electronic system, any discrepancy would immediately raise a red flag and the ultimate back up would be the ballot boxes and the ballots contained therein.

Since there is no dispute about biometric voter registration, the identification of voters via a physical printout of part the information contained in the electronic register has much less appeal. The requirement for the biometric registration was designed to solve the perennial problem of ghost or dead voters, first by ensuring the register is populated with details of real, living voters and secondly to ascertain that the person who turns up to cast a ballot is the actual registered person. It also eliminated opportunities for mischievous electoral officials to “vote” on behalf of registered voters who didn’t show up.

If the electronic voter identification system was to break down entirely, as it apparently did in 2013, any credible “complementary mechanism” would have to be robust enough to handle these challenges. A physical printout simply does not cut it.

Further, the lack of an audit has meant that we are reduced to putting out sporadic fires instead of addressing the system as a whole and dealing with root causes. We fail to see the wood for trees. Yesterday we were fighting over IEBC commissioners. Today it is voter identification and results transmission. All are important to fix but are only a small part of our dysfunctional electoral system which requires a complete overhaul. Everything from ID issuance to security to disposal of petitions needs to be looked into. 

For example, there is little discussion about the weaknesses shown up by Raila Odinga's 2013 petition against the election of President Uhuru Kenyatta. The Supreme Court had only 14 days to deal with it. The IEBC essentially ran down the clock by refusing to provide him the documents he needed to make his case until compelled to by the courts. As a result, was not heard on its full merits. In fact, as reported by George Kegoro, one Supreme Court Justice openly admitted that he might have ruled differently if he had had more time.  Yet we still have no law compelling the IEBC to hand over documents to petitioners nor are we contemplating changing the constitution to give the Supreme Court more time as recommended by former Chief Justice, Dr Willy Mutunga.

Clearly, the current debate has been held hostage to the narrow interests of politicians as opposed to those of Kenyans in general. The manner in which the Jubilee coalition has bulldozed the amendments through Parliament, despite its own Senators acknowledging that the Bill contains unconstitutional provisions, amply demonstrates this. In fact, the entire discourse on electoral reform has been polarized by politicians seeking advantage rather than attempting to reason out and fix the problems with the system. What they want is to win. Whether that win is secured in a fair and open manner is of secondary importance to them. 

Yet it is a matter of life and death for the rest of Kenya. Thus the passage of the amendments and their imminent signing into law by President Uhuru Kenyatta should not be the end of the matter. We still can and must free ourselves from the tyranny of numbskulls and insist that needed reforms are not left to the whims of politicians but are discussed and agreed in for a that include a much wider array of stakeholders and interest groups including but not limited to academics, professional associations, media, civil society and religious leaders. The reforms must also be about resolving the historical problems that have plagued our elections and ensuring a transparent, free, fair and credible vote, rather than a win for particular candidates.

Why Kenyans Should Rethink Their Hiring Policy

Boniface Mwangi is looking for a job. It may have come as no surprise when, during the launch of his book two weeks ago, he declared he would be running for a Parliamentary seat. But that doesn’t mean we should welcome it with open arms.

Over the last few months we have been treated to similar announcements by journalists, clergy and civil society activists. And it is all depressingly reminiscent of 2002 and the dash for elected positions under the National Alliance Rainbow Coalition banner. And, in the euphoria of giving Daniel Arap Moi the finger, we did not think twice about the future effect of decapitating the organisations that had been instrumental in delivering that moment.

Well, that future was not long in coming. Very soon after the Kibaki administration, packed rafters with “good guys” -the same ones who had told Moi, in the famous words of Kiraitu Murungi, to tend his goats and “watch how a country should be governed” took over the old habits of looting and state-sponsored violence resurfaced. This time, though, the culprits were our former heroes. “Anglo Leasing was ‘us’ – our people”, Mr Murungi would later admit.

The “eating” was all the worse since these were the same people who had formerly stood up to the Nyayo regime and whose rapture into government had hollowed out the civil society and religious organisations that were so critical in holding it to account. So today, as tales of grand corruption fill the headlines, we should reflect upon the experience of 15 years ago and look to keep our “good guys” in the positions where they serve us best and where they can keep government on a short leash.

Foreign Affairs Cabinet Secretary Amina Mohamed is also looking for a job. The government has proposed her as the next head of the African Union Commission and is spending millions of our tax shillings to lobby heads of state across the continent to give it to her. But she is already contracted to represent and lobby for our common interests abroad and has instead spent most of her time instead protecting the interests of President Uhuru Kenyatta and his Deputy, William Ruto.

Despite the clear stipulation in the constitution that “the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity”, which the Treaty of Rome does, Secretary Mohamed racked up frequent flyer miles and staked Kenya’s international prestige and interests on a shameful effort to pressure the International Criminal Court into dropping the crimes against humanity charges facing the duo.

Yet she has been conspicuously quiet on the plight of ordinary Kenyans unfairly banged up abroad. Currently, next door in South Sudan four Kenyans have been sentenced to life imprisonment following sham proceedings in which no specific accusations of wrongdoing were levelled against them. Efforts to get Secretary Mohamed to intervene and raise the issue with the South Sudanese government have borne little fruit, despite her frequent travels to Juba to shore up the peace process there and the clear leverage Kenya has over the Juba elite.

Andrew Franklin is also in search of employment. Along with around 750 Kenyans, the former US marine who has been living and working in Kenya for over three decades, applied for consideration as either Chair or Member of a reconstituted Independent Electoral and Boundaries Commission. Two weeks ago, the selection panel announced it had shortlisted five out of fourteen applicants for Chairperson and another 31 for Members. Mr Franklin did not make either cut. That, in itself, is not troubling. What is worrying is the opaqueness with which the shortlists were developed.

Since last Friday, when the selection panel announced it was suspending the interviews for Chairperson after questions were raised about the suitability of the shortlisted candidates, there has been disturbingly little querying either in the media or by civil society of criteria used to exclude 720 people from the process of public scrutiny. It does not seem to raise eyebrows when the five applicants whose credentials have been put in doubt are still listed among those slated to be interviewed as potential Commissioners beginning this Saturday. That the panel itself has offered no information on this gives rise to suspicions of underhand dealings and political interference in the process. Given our past experience with the consequences of messing with the credibility of electoral bodies, it should give all of us pause for thought.

These three examples evince our dangerously cavalier approach to distributing public positions. Beyond individual desire, the rest of us who get a say in who actually gets hired must think much more strategically about the sort of system we want to govern our affairs. While it is doubtlessly important that we need good people running government, it is perhaps even more so that we have them outside of it. 

And even within government, we have seen the folly of giving one political party all the reins of power. The so-called Tyranny of Numbers today militates against Parliament serving as an effective check on Executive excess. In the prevailing environment, where loyalty to party leaders trumps loyalty to country, and where nominally independent don't act as such, it is better to have divided government with one party controlling the Presidency and the other Parliament. While not guaranteeing good governance, that at least offers the possibility of limiting the damage they can do. 

In similar vein, it is even more critical that we not allow the state to poach our best and brightest from the only other institutions that can hold it to account. For the sake of the country, Boniface Mwangi and others like him should keep doing the jobs they already have. Which is not only to ensure Amina Mohamed and her government colleagues start doing theirs before we spend tax shillings to get them employed elsewhere, but that the likes of Andrew Franklin and 720 Kenyans are accorded a fair hearing for the public jobs they have applied for.

Kenya's Greatest Gamble Yet

Last Sunday, the Daily Nation bravely shone a spotlight on the gambling craze that is sweeping the nation. Sports betting has taken the country by storm. Since 2013 when the first online sports betting company, SportPesa, was registered, the Betting Control and Licensing Board has awarded similar licenses to nearly 30 other bookmakers. The industry today has a turnover of Ksh 2.1 billion which is expected to nearly triple over the next three years.

Yet, as with all gambling, this is not just a good news story about company profits. The fact is those profits are made on the back of broken dreams and crippled lives. While the touted image is the beaming face of a winner holding his big cheque, rarely seen are the millions of losers and the toll gambling addiction is taking on families across the country.

In February, the director of communications at SportPesa, Kester Shimonyo, told the Nation that people “should bet for fun but it should not be taken as a fulltime economic activity”. However, taking a chance on the wheel of fortune has been a national activity for a long time. 

Government has been turned into a looting machine which has destroyed the meritocratic basis of our political economy. Get-rich-quick schemes of the politically connected have undermined the utility of education, skills and character as guarantors of success has been severely undermined.

Today, in public affairs, what matters is the lottery of who you know, rather than the certainty of what. In today’s Kenya, where your last name can, in the words of Kalonzo Muyoka, “betray you”, and where values can be a liability, what does it matter the qualifications you hold, or knowledge or integrity you have?

The declaration earlier this week by Commissioners of the Independent Electoral and Boundaries Commission that they were willing to resign office was also the culmination of yet another a high stakes gamble of the sort that all too frequently seem to be the preferred way to run public affairs. It has been obvious to anyone who cared to look that public confidence in both the Commission and its Commissioners, the bedrock upon which any credible and peaceful election would rest, had long since eroded away. Opinion surveys have shown that citizens across political and ethnic divides had an increasingly dim view of the IEBC with nearly half of respondents in one poll saying the body could not be trusted to handle the 2017 election.

Yet despite this and through weekly public protests called by the opposition beginning April in which several Kenyans died or were brutalized at the hands of the police, and in which many businesses were looted, the Commissioners sat put and refused to budge. Talk of their resigning was peremptorily brushed aside even when the inevitability of their removal became plain. It was clear, like the many other Kenyans staking their lives and fortunes on the turn of a soccer match, the IEBC commissioners were betting on the outcome of the political match between the ruling Jubilee and opposition CORD coalitions.

Like their fellow gamblers, they do not see their future as dependent on their personal performance (already soiled by the failures during the 2013 election), or on their integrity, but on the games played by politicians.

Now following their resignation, Kenya will now embark on her greatest gamble yet. For 3 years, we have ignored the need to comprehensively reform our electoral system. Everything is broken: from the voter register to the petitions system, especially as regards challenges to the Presidential election. We have done little to mitigate the weaknesses exposed by past elections, to acquire the requisite technology and making necessary changes to the law. Party nominations remain fraught with cheating and violence and attempts to regulate campaign finance have hit a brick wall. 

Now, with a year to go to the 2017 polls, we find ourselves forced to make fundamental changes. It is doubtful that there will be enough time for anything other than “minimum” reforms followed by a roll of the dice and many prayers for peace. 

This nation of inveterate gamblers, which has since independence placed similar wagers with disastrous consequences, will once again stake its future, not on its skill and knowledge, but on the games played by its politicians.

And just as with the sports betting, on election day the images of the election will be the beaming politicians and voters' purple-stained fingers, not the rage and disappointment resulting from an election with little public faith.

In many ways, Kenya has been playing with matches and riding her luck. Yet we are storing up terrible trouble for the day our luck runs out.

Covering or Covering Up ? How Kenyan Media Betrays Kenya

On the eve of Madarka Day, CNN’s Robyn Kriel dropped bombshell. Her investigations had revealed that the Kenya government was engaged in covering up the truth surrounding the deaths of at least 141 Kenyan troops in El Adde, Somalia. The story made headlines around the world. However, here, where it should have mattered most, it was mostly ignored by the local press.

Why? In January when the slaughter happened, it was on the front page of every newspaper. But soon thereafter, it became clear that the media was being careful not to raise too many uncomfortable questions. Over the course of the last 6 months, even as further revelations, including Al Shabaab’s release of footage of the attack, showed gaping holes in the official version of events, the press has demonstrated little inclination to pursue the story. Though long whispered in newsrooms, that it took a foreign journalist to provide the first serious look at potential casualty numbers is most telling.

As I wrote this, news broke of yet another Al Shabaab attack, this time on an Ethiopian-manned base in Somalia. This time, the Kenyan media had few qualms about speculating on casualties or handing the terrorists a propaganda coup, the very excuses it has offered for not pursuing the El Adde story. That the coverage of the attack on the Ethiopians was carefully scrubbed of any mention of El Adde despite the obvious similarities, betrays their real concern: sparing KDF and government blushes.

Meantime, official statements about other events in Somalia continue to rampage across the headlines unchallenged. Kenya Defence Forces’ claims about battlefield successes against the Al Shabaab are reported as gospel truth, even when the facts are in dispute. It is a most curious and intriguing stance taken by a media fraternity that is widely acclaimed as one of the most vibrant on the continent. In truth, the accolades have routinely tended to overstate our media’s autonomy and gusto while underplaying its short memory and its marked tendency to kowtow to politicians and officialdom.

The coverage of the current impasse over electoral reforms and over the fate of the Independent Electoral and Boundaries Commission also highlights some of these shortcomings. Since the 2013 general election, it has been obvious to anyone who cared to look into it, that the electoral system is in dire straits. Its performance (as well as that of the Supreme Court) in that poll left plenty to be desired and a sharply divided country. Yet in the last 3 years, the media has not prioritized the telling of this story. This despite the fact that a clear public interest exists: violence has accompanied all but one election in the multiparty era and the bungled 2007 contest almost tipped us into the abyss of anarchy and civil war.

Indeed, it was not until politicians exploited the situation to create a crisis that the media collectively took note. And even then, the reporting has been little more than an uncritical regurgitation of the opposing sides’ statements. Little energy is expended in articulating the issues of disagreement and whether these reflect simple party political and individual interests or are driven by a serious desire and plan to protect the national interest. Is the dispute about acquiring or preserving jobs for politicians or about fixing the broken system?

The media’s preoccupation has been with the political battles, with picking the winner and losers, rather than with the substance of the fight. A consequent failure to distinguish smoke from fire has allowed the politicians to shape the public discourse in self-serving ways that obscure what’s really at stake. This is how we have ended up with a national debate about the rather absurd proposition that the constitution somehow forbids dialogue or the equally preposterous idea that IEBC commissioners can be fired by physically ejecting them from their offices in Anniversary Towers.

Just as with the tragic El Adde debacle, Kenyan media has mostly been a forum for obfuscation and misdirection rather than a source of light and understanding. It has betrayed the Kenyans who, at great cost in lives, took on autocrats to defend the freedom it profits from and sadly abuses. When it abdicates its agenda-setting role and conspires in the silencing of voices critical of government; when it would rather cover up than expose official misdeeds; when it becomes a megaphone for Orwellian doublespeak; then a free media becomes an instrument of oppression and tyranny rather than a necessary bulwark against it.

Kenya's Politics Of Crises and Forgetting

Earlier this week, on the eve of Madaraka Day, history paid Kenya another visit. Online photos of CORD principals, Raila Odinga and Moses Wetangula in a jovial meeting with President Uhuru Kenyatta and his Deputy, William Ruto, at State House, Nairobi caused a bit of a stir. But it shouldn’t have. As I explained last week, we have been here before.

Political crises have been a near-constant feature of Kenya’s post-colonial history, and especially since the agitation for electoral and constitutional reform began in the 1980s. Politicians have perfected the art of taking the country to the brink of the abyss of violence and anarchy and pulling back at the last minute.  It is a callous calculation, where violence and death are used as negotiating tools. If, as Carl von Clausewitz asserted, “war is the continuation of politics by other means” in Kenya, crises and bloodshed signal not a breakdown of the political process, but how it is inaugurated.

The script is always the same: Opposition demands talks on reform or a redress of grievance. The government refuses. Demagogues on both sides polarize public opinion, mostly along ethnic lines. With few options, the opposition appeals to the street to force the government to give in. The street demonstrations are met with police violence and after enough Kenyans have bled and died, the government gives in and agrees to talks.

This is politics reduced to a staring contest, where the goal is not to avoid crises but to ignite them. It is a politics that is managed via crisis, in which Kenyan citizens are not the end, but as the means of contestation. It is a politics obsessed with the problems and welfare of politicians, not so much those of the people who are reduced to pawns in a game of elites.

There is no true animosity between the main protagonists, despite the hateful rhetoric employed to galvanize their supporters. In the end, the politicians remain friends and business colleagues and country club mates. The politics they have created and perfected eschews permanence and commitment, whether to principles, policies, friends or enemies. The only defining characteristic is ambition.

Of necessity, in rejecting permanence, it also rejects history. Who, after all, wants to be reminded of their hypocrisies? Or that their current BFF was the declared mortal enemy of all Kenyans in the last election cycle? In kowtowing to the politicians, Kenyan media also reflects much of this aversion to history and context. Political events and crises thus seem to spring out of nowhere, without history or context, and just as quickly disappear into nothingness without actual resolution once the politicians have gotten together to rearrange their seats at the table.

This is what is happening with the current dispute over the fate of the IEBC commissioners. Despite the fiasco witnessed in the 2013 election, there has been little discussion about it in the last three years. Neither the opposition nor the government have shown much interest in addressing the failures witnessed during the election or the problems highlighted by the subsequent petitions filed against the 2013 results, especially the petitions against the Presidential poll. Now, with just over a year to the election, precipitating a crisis appears the only means our politicians can imagine to address the issue.

Historical amnesia is apparent in the way they have proposed to drive the talks forward. Apparently, a deal has been reached in which each side will nominate five people to a 10-member committee, composed solely of Parliamentarians, to conduct the talks. This would be little more than a resurrection of the 1997 Inter Parties Parliamentary Group process which, as I discussed last week, then President Daniel Arap Moi used to blunt the push for reform by excluding all other interested players, especially those from civil society.

So today, as the country breathes a sigh of relief, the politicians have put yet another one over us. Once again they have successfully gotten us to bleed over their problems and ignore our own. No wonder they seemed so giddy at their State House get-together.

Why This Is Not An IPPG Moment

Kenya today finds itself in the throes of a crisis. In the run up to next year’s scheduled general election, weekly opposition protests and the subsequent brutal crackdown, have deeply polarized the country and left at least three people dead and many others, including police officers, wounded. Though now suspended, a threat to restart the demonstrations if dialogue doesn’t happen still hangs in the air. But beyond the rhetoric, the teargas and the scenes of bloody confrontation, this is above all a crisis of memory and imagination.

We have been here before.  Almost every election in the multiparty era has been preceded by protests and demands for reform. The contestation has mainly been about two questions: the rules governing elections; and who sets and administers them. The latter question is the immediate spark for the current weekly demonstrations with demands for the reconstitution of the Independent Electoral and Boundaries Commission. However, in the background, and sadly barely mentioned, lurks the even more critical issue of wider reforms to the electoral system.

Nearly two decades ago, as the country prepared for another election, near identical scenes of protest over the composition of the then Electoral Commission of Kenya elicited a vicious response from the Nyayo government led to the deaths of 13 protesters on Saba Saba day in 1997 and the formation of the Inter Parties Parliamentary Group which negotiated a raft of reforms. These allowed the country to proceed to the polls later that year.

In our collective memory, the IPPG process was as a seminal moment during which the autocratic President Daniel Arap Moi was forced to accede to the people’s demand for change. George Kegoro, in March described it as “an elite platform that Kenyan political actors and civil society crafted in 1997 to save the country from the disaster that might have resulted from a threatened opposition boycott of the General Election of that year”. 

There are many parallels with today’s impasse including the threat by the opposition Coalition for Reforms and Democracy to boycott the 2017 elections if the IEBC is not replaced. Given that, many are citing the IPPG as a model for resolution. “It is time for another IPPG-like moment in Kenya,” as Mr Kegoro presciently wrote. The insistence by the governing Jubilee coalition and its supporters that Parliament is the appropriate forum for resolving the dispute can also be seen in this light.

However, this telling ignores a few inconvenient facts of history. The IPPG was not crafted by the opposition ad civil society to save Kenya. On the contrary, it was, as Rok Ajulu described in the New England Journal of Public Policy, “a KANU platform … designed to blunt the impact of the reform agenda of the opposition and its allies in the National Convention Executive Council [the civil society coalition that had spearheaded demands for change].” The NCEC correctly saw the IPPG as a tool “to cool the fire raised by the … the demands of the country for electoral reform, and in the process to legitimise the Moi re-election machine," and opposed it.

While the IPPG achieved some reforms, including allowing the opposition a role in appointing ECK commissioners, it was ultimately betrayed and many of the negotiated reforms were not enacted into law following the early dissolution of Parliament. Moi’s successor as President, Mwai Kibaki, would a decade later rubbish the very agreement he had had a hand in negotiating as a non-binding “gentleman’s agreement” and ignore it when appointing ECK commissioners, fatally undermining the ECK’s credibility and setting the country on the path to the 2008 post-election crisis.

Many of the arguments we hear from government types today in favour of a Parliamentary process are a rehash of Moi’s justification for using Parliament, the “legitimate representative of the people” as a means to exclude the citizenry. They highlight the question at the heart of the push for constitutional transformation which, despite the 2010 constitution, we have failed to resolve: Is reform to be a people-driven or state-driven process?

 This is evident in the continuing delegitimization of the street as a proper avenue for political participation and the idea that state institutions are the only acceptable forums for political negotiations. We see it when Boniface Mwangi’s peaceful demonstrations are violently dispersed and hear it when the government attempts to arrogate to itself the power to determine where and when protests can happen.

It is this collective failure to imagine alternative spaces where national questions can be debated and resolved by inclusive collections of wananchi, and not just by politicians or public officials, that is at the root of many of the state’s current legitimacy problems. Sadly, our political processes continue to be more concerned with solving the problems of politicians rather than those of the people.

Going forward, we must insist that any talks on fixing the electoral system not be sequestered in Parliament or participation limited to politicians. This is Kenya’s problem, not Raila Odinga’s or Uhuru Kenyatta’s. We must demand an inclusive national dialogue involving a wide array of stakeholders, including organized civil society and academics. These groups were major drivers for the 1997 “No Reforms, No Election” movement that was locked out of Moi’s IPPG talks. It is time they helped us finish what they started.

Of Police Brutality And Imperfect Victims

It was, by any measure, a vicious assault. At least 15 people were hospitalized following Monday’s attack on protestors and bystanders by police during demonstrations meant to press for the ouster of the Independent Elections and Boundaries Commission officials. The scenes beamed around the world of citizens being chased down, clobbered and left to lick their wounds in the street, were a throwback to an era many had assumed was behind us.

Public attention has focused on the particularly brutal beating meted out to Boniface Manono and the image of his crumpled form lying on its side, his body in the street, his head resting on the kerb and menaced by a police officer’s raised boot, has become iconic.

Mr Manono is far from an ideal victim. His story about how he supposedly stumbled on the protest doesn’t appear to gel with the pictures being flashed around social media. What appears to be a stone in his back pocket as he endures police kicks and clubs hints at a more complicated picture than those who would wish to paint a vista of clearly defined villains and victims might wish.

But it is precisely because he is not perfect that we need to pay attention. This is not to endorse any violent or illegal behavior on his part, but to assert a simple truth: the law protects everyone or it protects no one.

In his famous play, A man For All Seasons, Robert Bolt penned a dialogue between a dialogue between Sir Thomas More and his daughter's suitor, William Roper in which the former argues for giving the Devil the benefit of law. “What would you do? Cut a great road through the law to get after the Devil?” he asks the young Roper. “I'd cut down every law in England to do that!” comes the reply. “And when the last law was down, and the Devil turned round on you - where would you hide, Roper, the laws all being flat?” counters Moore. “Yes, I'd give the Devil benefit of law, for my own safety's sake.”

It is for our own safety’s sake that it should not matter whether or not Mr Manono was an innocent bystander or a violent criminal. The idea that the actions of the policemen assaulting him would be any more acceptable if he were a thug should be an anathema to all. For if we allow the police to ignore the law, to cut it down to get after the Devil, we will one day wake up to find that they are ignoring all manner of law in places we had little imagined. After all, the laws we have put in place exist as much to protect us from criminals as from abuse by public officials and officers of the terrible power we bestow upon them.

Similarly, online contestations over whether Mr Manono is a fake stand-in for the supposedly deceased real victim of the battering miss the point, as do the official protestations that he did not die. While the fate of the victim is undoubtedly important, it has no bearing on the legality of the police action and does not render the assault any less atrocious. And the despicable politicizing of the incident threatens to introduce a new and dangerous standard for public assessment of police conduct: did the victim die?

All this distracts from the real issue we should be coming to grips with which is the failure of security sector reforms undertaken thus far to transform the National Police Service from what the 2009 Report of the National Task Force On Police Reforms, better known as the Ransley Report, described as “a punitive citizen containment squad” into a modern institution that lives up to the motto of “Utumishi Kwa Wote”.

Reforms undertaken to date have largely been cosmetic, and haven’t addressed the culture of impunity and cruelty bred by over a century of being the enforcers of a corrupt and thieving political elite. In these circumstances, providing the police with better equipment, as the government has done, just makes them more effective oppressors of the very people they are meant to serve. 

Isaack Hassan's Holiday Message To IEBC Staff

Don't Forget The Other National Disaster

When the arrivals section of the Jomo Kenyatta International Airport's Terminal 1 went up in flames, it was interesting to watch the government spring into action. within hours, President Uhuru Kenyatta was at the scene and he stayed there for a few hours more, supposedly to supervise the admittedly crappy response. He and his mandarins were on TV and online providing regular updates. Within days, he had restructured airport security, ordered an investigation into the fire and promised to build a new terminal and fully refurbish the existing three. "We are on top of this. We will find the problem and we will fix it," seemed to be the message.

It is a complete reversal of his ostrich-like attitude to the elections in March. Despite the many failures then, we have heard nothing about an audit or about reform. Quite the contrary. His deputy has declared that the IEBC did a "fabulous job." This cavalier approach is all the more surprising given that it was a bungled election that set the country alight 5 years ago.

You would think that a burning airport would be of less consequence than a burning country. But the Kenyatta administration seems to care more for the former than the latter.

The smouldering terminal is the perfect symbol for a smouldering nation. The election fiasco has left many angry and disillusioned with the hollowness of democracy. Autocracy stalks the land. From the rehabilitation of Daniel Arap Moi to the increasingly bellicose and threatening language of the new Principal Secretaries, it is clear that the country is heading down the wrong path.

The airport fire was the result of multiple institutional failures. Over the last few days, the evidence of the country's lack of effective disaster prevention and response tragedies has been overwhelming and is leading to calls for change. Already, President Kenyatta has declared the overhaul of our national disaster services with the formation of a new agency to spearhead coordination. But what about that most severe of threats to our national fabric, the election?

The institutional failures in March must also be addressed. When the IEBC cannot say who or how many voters it registered; when all the systems meant to ensure the transparency and credibility of the poll fail; when the newly minted Supreme Court refuses to consider evidence on a technicality and offers up a moronic judgement; then we are playing with fire.

Just like there were reports of immigration and Kenya Airports Authority staff shooing people away from a small fire while leaving it to become an inferno, our politicians are shooing us into the safety of our tribal stockades while leaving the country to burn. We must resist this. The charade of "accept and move on" poses real risks down the line. If we do not seek to understand and address the problems of the last election, we will go into our next one even more divided and even more frightened.

Today the air is thick with talk of national disaster preparedness. Every pundit on TV and on the internet is offering his two cents on what failed and what needs fixing. Yet the March elections were every bit a national disaster as was the JKIA fire. And when we speak of improving our capacity to prevent and respond to disasters, we must also speak of how we are responding to the election and what we are doing to prevent catastrophe in 2017.

I, for one, would much rather see President Kenyatta taking the lead in, and giving regular updates on, that effort. And I would much rather the talking heads were putting that at the top of the national agenda. Let's get on top of this. Let's find the problem and let us fix it

Who Will Bell The Cat?

Less than three years after we promulgated a new constitution, meant to herald a new era of democratic governance, our polity is facing a severe crisis of legitimacy. Today few Kenyans believe their MP represents them. Half the country thinks the presidential election was stolen and the revelations of IEBC incompetence threaten the credibility of the entire March General election. Untrammelled rent-seeking by the new county authorities and petty arguments over the appropriate manner of addressing housing and transporting governors and their wives are making a mockery of devolution. We are now the fourth most corrupt nation in the world.

The system is broken. So why aren't we fixing it? Why aren't we even talking of fixing it?

I think we may be seeing the consequence of a deficit in accountability. We are already well past the point at which our shamocracy pushed honesty and prudence out of public office. Now that the thugs and tribalists have taken over, they are systematically deconstructing our national identity and replacing it with ethnicities. This fracturing of identity makes it much harder for the people to mount collective action to punish thieving elites.

One of the primary ways (by no means the only one) the masses can enforce accontability is through elections. But we live in terror of elections. And with good reason. Elections work, when governments are evaluated on their performance, and when citizens watch whether governments keep their promises, and oust those that don’t measure up. Such accountability improves the provision of public goods, boosting incomes and welfare and reinforcing the sense of national belonging.

However, in poor and diverse societies such as ours, electoral competition undisciplined by accountability and enforced rules curtailing scope for cheating as well as constraints on the exercise of power, can be very dangerous indeed. Politicians are evaluated on their propensity for patronage, further polarizing the fractured identities and leading to higher risks of violence.

We don't have to look far for examples of what happens when we stay on the road we are on. Cote D'Ivoire and Somalia have been through this. The former was once Africa's economic miracle and is now a basket case. The latter is one of it's most ethnically homogenous societies, which has been tearing itself apart for more than two decades. We ourselves had a taste of it in 2007.

The lack of accountability and fracturing of the national identity is the road to hell. It is why we are deathly afraid of elections. When accountability for the deaths of 1500 Kenyans is swept under the carpet in the name of a fake reconciliation, when we elect thugs to public office and turn a blind eye to electoral malfeasance in the name of peace, we are just storing up further troubles down the road.

It is also proof positive of the hollowness of our democracy. A free people should have no reason fear electoral contests. And to the extent that we do, we are neither free nor a people.

So what is to be done? The politicians will not fix it. Their unrestrained greed for power and prestige is a big part of the problem. Also, the president and his henchmen do not want to broach the issue for fear of having to acknowledge that their victory is stained. None other than the Deputy President has openly declared that the IEBC, despite its manifold failures, did a "fabulous job." Presumably he meant in installing the ruling clique's preferred candidate. In Parliament, a similar reluctance to highlight the problems springs from similar motivations: impugning the integrity of the system impugns the legitimacy of all incumbents. It was telling that when calling for reforms, the opposition CORD alliance threatened to boycott the next General Election. But that's in five years time! The system needs to be fixed today.

No. We have to look elsewhere. And we have a ready example from our recent past. It was a coalition of civil society, churches, media and disaffected politicians which mobilized the Kenyan people and the international community to stand up to the Moi dictatorship in the 1990s and to demand accountability. This coalition can be re-formed. But for that to happen, we need to shake off the fear and ignorance that seems to infect its parts.

Civil Society must come out from hiding and find the courage to speak out. The media must rediscover its core function of informing the public. The lobotomising of the news must stop and journalists should go back to being newsmen and not performing monkeys. The church (and the mosque) must rediscover their moral centres. And politicians must reacquaint with principle. Most importantly, the silence must stop. If this is done, then the people and the international community will regain their voice, just as they did twenty years ago and force reform on the elite.

But all this takes courage. It takes leadership. So the question is: In a nation where we have turned men into mice, who will bell the cat?

The End of "Accept and Move On"?

For the first time in a long while, there's reason for hope. Hope that the veil of darkness and silence that had descended upon Kenya following the election has begun to lift. It may be that it is always darkest before the dawn but just as those of us insisting on an examination of what went wrong were beginning to feel anachronistic, a typically Kenyan piece of political theatre seems to have brought the whole "accept and move on" charade to a screeching halt.

It all begun with Kethi Kilonzo's nomination for the Makueni senatorial seat left vacant by the death of her dad and ended with the incompetence of the Independent Elections and Boundaries Commission put on full display. Today, it is immaterial (though it shouldn't be) whether Kethi lied about being a registered voter and whether she presented fake, forged or stolen documents to bolster her case. The spotlight is squarely on the IEBC which has been shown to have used differing standards to register voters as well as an inability to maintain an accurate and consistent record of how many voters it had actually registered, whom they were and when it registered them.

Coupled with its inability to verify that info on voting day following the widespread failure of the electronic voter identification system as well as the inability to verify vote counts following the failure of the electronic results tallying system, this inevitably calls into question the credibility of the election and its declared result. That doubt is further reinforced by the fact that more than four months after the election, the IEBC is yet to publish the full results of the election amid reports of difficulties explaining the one million voters who seemingly only voted for their choice of president but not any of the 5 other races, behaviour that no electoral observer seemed to have witnessed.

The Kethi show has exposed the rot behind the wall of silence and denial and, in the light of its revelations, it seems Kenyan society is beginning to wake up to the possibility that it may have been the victim of massive fraud. This awakening is being led by the media. "Today there was an all-out war by the media on IEBC, did we miss the bus three months ago?" tweeted KTN journalist Dennis Donsarigo after apparently suddenly discovering the multiple voter registers. The Law Society of Kenya also seems to have realized that letting the IEBC conduct an audit of its own performance is not necessarily a good idea. "There is no way you can audit yourself that is why we have started our own independent investigations that would look into IEBC's conduct following the last polls," declared its chairman, Eric Mutua.

Aside from the IEBC, there is another institution that will need to be scrutinized. Given all the inconsistencies, incompetence, contradictions and outright fraud that is being brought to light, the Supreme Court of Kenya's declaration of the election as free and fair looks tenuous indeed. Basically, the court would have us believe that a dubious voter registration exercise, dubious voter registers and a dubious vote tally delivered a credible election. Chief Justice Mutunga and his 5 colleagues have some explaining to do especially after they refused to consider all the evidence and issued a joke of a judgement.

Finally, we may feel the need to re-examine the constitution and electoral laws. For example, we clearly need to have a longer period between the actual election and inauguration to allow for proper hearing and disposal of presidential petitions. Other issues arising from a proper audit of the roles played by the IEBC and the Supreme Court in this tragicomedy may also point the way to other necessary legislative reforms.

But, more than all these, I hope it will lead to a real soul-searching among the Kenyan people. How could we let ourselves be so easily blinded and misled? How were we so easily stampeded into our tribal stockades? How did we end up with a government headed by persons suspected of the most heinous crimes against humanity, a senate and parliament peppered by suspected drug barons and ex-cons and whose members seem only keen on self-aggrandizement? How is it that our devolved county governments seem to be little better? How come all our politicians seem little more than bigoted tribal kingpins, what John Githongo describes as "Kenya's most committed tribalists, thieves, liars and anti-Kenyans"?

The book Wars, Guns & Votes: Democracy in Dangerous Places by Paul Collier offers some interesting insights. His research reveals that democracy, at least as practiced in the ethnically diverse societies of "the bottom billion" -what used to be called the third world- has led to increasing polarisation, increasing conflict and has driven the honest and meritorious out of public life. Sound familiar? The key phrase there is "democracy as it is practiced." For we do not really practice democracy. What we have is a shamocracy: it looks like democracy but is really nothing more than a sham: elections but not the power of choice; constitution but not the rule of law; a free press that tells us nothing; the language of tolerance and universal rights, but none of the protections. It turns out, however, that while actually being a democracy is very good for poor countries, pretending to be one can be very bad. And that is what we've been doing.

It is time we got back on the reform bandwagon and became serious about democratizing. Only this time, we must begin by reforming and democratizing ourselves. We must stop the pretense. And we must begin by insisting on the rehabilitation of civil society, our guiding light in the dark days of autocracy (which, by the way, is way worse than pretend democracy). Actually, we should beg their forgiveness for the way we have allowed them to be mistreated and misrepresented. Thereafter we must together begin the task of self-examination. The now-forgotten TJRC report would be a great place to start.

This can be a proper Jubilee year, not just in name, a fake foisted on us by a bunch of politicians. It can be the beginning of a period of recollection, restitution and forgiveness. We can begin to understand the and resolve the problems of the past and put those ghosts to rest. And we can together agree on what needs to be done about the last elections and begin to chart a way forward. If we do so, in 5 years time we can celebrate a true milestone along the path to real democracy and nationhood. 

My Dissenting Opinion

Legal judgements do not always make for absorbing reading. I suppose this is because judges want to sound measured and impartial, disinterested if not particularly interesting to those whose study of the law consists of a few seasons of Boston Legal.

And so it was when the Supreme Court released its judgement, finally offering up a justification for its decision to uphold the election of Uhuru Kenyatta as President of the Republic of Kenya. Still, as I dutifully and valiantly trudged through it 113 pages, I found myself getting all emotional about this lack of emotion.

Now I'm a great Boston Legal fan so I will not pretend to understand the intricacies of law or the ways of lawyers. My ignorance was not helped by the reluctance of the media to unpackage the judgement and explain the old precedents it has overturned or new ones it has established (BTW, why is that?). In any case, how a ballot transmogrifies into a vote holds little fascination for me. What did, however, was to see the problems of the election reduced to such bland, tasteless and uninspiring arguments.

“Is that it? Where is the outrage?” I kept asking myself. Surely, the frozen IEBC screens that kept a nation in purgatory for a week deserve more than a “We came to the conclusion that, by no means can the conduct of this election be said to have been perfect, even though, quite clearly, the election had been of the greatest interest to the Kenyan people, and they had voluntarily come out into the polling stations, for the purpose of electing the occupant of the Presidential office.”

I am sure the distinctions of who bore the shifting burdens of proof as well as just how convinced the Court needed to be (beyond reasonable doubt or on the balance of probability or somewhere in between) have their place in the sanitized arena of the courtroom where everyone is friendly and learned. But out here, where elections are more about raw emotions than rational choices, such abstract considerations are a luxury we cannot afford.

Whether “the Petitioner clearly and decisively show[ed] the conduct of the election to have been so devoid of merits, and so distorted, as not to reflect the expression of the people’s electoral intent (italics theirs)” is of less import as a test here. In the end, the fact of who won pales in significance in comparison to the manner in which that win was secured.

By now, the substance of the legal battles enacted live on TV will have ebbed from most minds but few will ever forget those IEBC screens. In the real world, it is those screens that militate against legal assumptions such as omnia praesumuntur rite et solemniter esse acta: all acts (of public bodies accused of irregularities) are presumed to have been done rightly and regularly. We dare not presume a thing like that. How can we when it is public bodies that have given away our land, detained, tortured, disappeared and murdered those they were meant to serve, and turned a blind eye when thieves loot the treasury and granary?

In truth, while the Supreme Court has quite correctly pronounced itself on the validity and legality of the IEBC register(s), methods and declarations, the ultimate judges of the credibility of the exercise are the people of Kenya. If a number of them feel that their votes did not count, feel disenfranchised by the system, then to that extent the processes failed.

The Court’s opinion is undoubtedly the one that matters in deciding whether the election achieved the standards set forth in our law. And I wouldn't have it any other way. But there are other opinions and other courts. The opinion of the public court, imperfect and prone to mood swings and vulnerable to deceptions, matters most in sustaining and developing a democracy. It is the opinions of the millions who live and breathe outside its hallowed halls that should always have been the focus of our attention. So, when one hears stories of people wanting to burn IDs or saying they'll never vote again, it is clear that there are real credibility issues that need resolving. The question must now be: How do we restore the faith of half the country in a system that they believe, rightly or wrongly, has betrayed them once too often? How do we provide relief to the other half who feel the need to constantly and sometimes hysterically defend the electoral result?

I think a good place to start would be a comprehensive, honest and impartial audit of the entire electoral process, everything from the registration of voters to the tallying and transmission of results. Something more than the corruption investigation that the Supreme Court has recommended.

Lets's fix this before we "move on." It must not be swept this under the national carpet. And while we’re at it, an airing of our collective closet -the TJRC report is due in just over two weeks time- would help immensely in tempering the emotion associated with elections and creating space for more rational deliberation, perhaps too not unlike what happens in the courtroom. After all, we could use a break from the interesting times.

The Republic Of Fear

It used to be we were only afraid of the state and its capacity for illegitimate violence. We blamed politicians, not opinions, for inciting tribal clashes. It was the government, not citizens, which gagged the press or forbade dissent.

No more.

Welcome to the Republic of Fear. Where terror rules and citizens are frightened of what lurks in the dark recesses of their hearts. It is a country where no questions are allowed which may break uncomfortable silences or awaken the ghosts of deadened intellectual faculties.

This is the nation we are building in Kenya. A country of official truth. When citizens feel disenfranchised by bungled elections, we tell them to shut up and keep the peace. Wait for the Supreme Court to tell you what you should or should not think. Do not trust yourself, just as we do not trust you.

Well, the Supreme Court has given its ruling. The election and declaration of Uhuru Kenyatta as President-Elect were done in conformity with the law. That is the official truth. We will wait for two weeks to learn of the reasons underlying it. In the meantime, we are told to keep calm. In the Republic of Fear, inconvenient opinions and uncomfortable thoughts are banned. But, unlike in the past, this is not a ban enforced by the security agencies. It is imposed by mobs of citizens which roam our airwaves and digital superhighways, armed with virtual machetes and ready to hack away at the first hint of free thinking.

We have already let them burn down the temples of dissent. Our famously rumbustious press now remains mute when expensive BVR kits and results transmission systems don’t work and when the IEBC presents woolly sums, and when protestors (today called rioters) die following the Supreme Court verdict. Our civil society organisations have been silenced by dubious allegations of pursuing foreign agendas. When politicians kiss and make up, "historical grievances" and the IDPs they have generated disappear.

Only official election results matter -or more accurately, only the official version of election results matters. Media houses with reporters on the ground at all polling stations cannot call the election as their sums may differ from official tallies. And if they do differ, they are not to ask questions. The official truth trumps all! Today our journalists are reduced to performers and comedians – a role they seem to have accepted with relish as cheerleaders for the “Keep the Peace” and “Let’s Move On” bands.

But what exactly are we moving on to? Rather than signal Kenya’s rise from the ashes of the violence of five years ago, the elections have revealed just how much further we still have to go. We have spent the last half-century of independence in a battle against the state, in an effort to tame and reform it. In large measure, the people’s triumph, as reflected in the new constitution, has turned out to be a hollow victory.The struggle against the state obscured a much more fundamental challenge. With these elections, that mask has been removed. It is now obvious that the real enemies lie within. It is our passions and minds that need reforming. It is our fear and distrust of one another that need taming.

No longer can we just blame a thieving political class. It is rather a time for deep reflection on our own conduct and beliefs. The media can and should lead this effort. It is the least they can do to begin to atone for their own conduct over the last month.

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Some People Can't Handle Elections

The Monsters Under The House

At the end of my first term in high school, I watched a screening of Steven Spielberg’s Poltergeist, the tale of an ordinary family unknowingly living in a house built over a graveyard without the bother of moving the bodies. Of course, this does not go down well with the spirits of the dead, who make their displeasure known by slowly torturing the family into madness. In one of the scenes, a man stares in horror at a mirror as fingers tear away at his reflection’s decomposing face till it falls into the bathroom sink. Needless to say, I have never looked at bathroom mirrors in quite the same way since.

Last week, it was Kenya’s turn to look into the mirror. Elections provide opportunities for national self-examination and renewal, for the country to take a long, hard look at itself, assess it achievements, reorient its priorities. However, like I have done too many times since I watched that movie, we chose to turn away, afraid of what we might see.

Fear can make people do strange things.

We had already normalized the abnormal, making it seem perfectly acceptable to have two ICC-indicted politicians on the ballot. At the first presidential debate, moderator Linus Kaikai had been more concerned with how Uhuru Kenyatta would “govern if elected president and at the same time attend trial as a crimes against humanity subject” and not whether he should be running at all. Any suggestion of consequences for Uhuru’s and William Ruto’s candidature had been rebuffed with allegations of neo-colonialism, interference and an implied racism. People who had spent their adult lives fighting for Kenyans’ justice and human rights were vilified as stooges for the imperialistic West for suggesting that the duo should first clear their names before running for the highest office in the land.

As the elections approached we were assailed with unceasing calls for peace and appeals to a nationalism we knew to be to all too elusive. We voted and celebrated our patience and patriotism, brandishing purple fingers as medals for enduring the long queues. And we heaved a collective sigh of relief when it was all over. We afterwards wore our devotion to Kenya on our sleeves and on our Facebook pages and Twitter icons even as we were presented with the evidence of our parochial and tribal voting patterns which fulfilled Mutahi Ngunyi’s now prophetic Tyranny of Numbers.

By now, a compact had developed between the media and the public. Kenya would have a peaceful and credible poll no matter what. The narrative would be propagated by a few privileged voices and it would countenance no challenge. The media would sooth our dangerous passions with 24-hour entertainment shows masquerading as election coverage. We would laugh the uncomfortable laughs, and plead and pray that politicians would not awaken the monster we recognised in each other. Let sleeping ogres lie, seemed to be the national motto. Meanwhile, those who could stocked up on canned food and filled up the fridges and stayed away from work. As food prices quadrupled we desperately clung to the belief that all would be well if we kept our end of the bargain and didn’t ask uncomfortable questions.

When nearly all the measures the IEBC deployed to ensure transparency during the election failed, this was not allowed to intrude into the reverie. Instead the media continued to put on a show and we applauded them for it. Uncomfortable moments were photoshopped out of the familial picture. Foreign correspondents who dared to question our commitment to peace were publicly humiliated and had their integrity impugned. I played my part in this. When the New York Times dared to suggest that if Raila Odinga contested the outcome “many fear [it] could lead to the...violence that erupted in 2007,” it didn't take long for the reactions to come. “Foreign press haven’t given up [on the possibility of violence],” I tweeted. Others quickly joined in, some suggesting that the writer was stuck in 2007.

However, if we are honest, it is us who were stuck in the narratives born of the last five years. It was not, as suggested by the NYT in a later piece, a renewed self confidence that drove us. Quite the opposite. It was a fear, a terror, a recognition that we were not as mature as we were claiming to be; that underneath our veneer of civility lay an unspeakable horror just waiting to break out and devour our children. We were afraid to look into the mirror lest our face fall in the sink.

It is said that truth is the first casualty of war. In this case the war was internal, hidden from all prying eyes. Who cares about the veracity of the poll result? So what if not all votes were counted? We had peace. “The peace lobotomy,” one tweet called it. “Disconnect brain, don't ask questions, don't criticize. Just nod quietly.”

Yet we should care. Our terror and the frantic attempts to mask it were a terrible indictment. As another tweet put it, it “reveals how hollow the transformation wrought by the new constitution.” Instead of being a moment for national introspection, the election had become something to be endured. The IEBC was expected to provide a quick fix to help us through it but was never meant to expose the deeper malady of fear, violence and mistrust which we have spent five years trying to paper over with our constitutions and coalitions and MoUs and codes of conduct. The fact is we do not believe the words in those documents, the narratives inscribed on paper but not in our hearts.  And this is why we do not care whether an election springing from them documents is itself a credible exercise.

What maturity is this that trembles at the first sign of disagreement or challenge? What peace lives in the perpetual shadow of a self-annihilating violence?

Cowards die many times before their deaths and we have been granted a new lease of life. However, if we carry on as we have done over the last five years, if we continue to lack the courage to exhume the bodies and clean out the foundations of our nationhood, we shouldn’t be surprised if in 2017 we are still terrified of the monsters under the house.

Chasing Shadows

It's a one horse race to the finish!

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