Lying in State: Official Deception In The Jubilee Era

The reactions to the International Criminal Court’s Appeal Chamber’s ruling last week is a good example of the doublespeak that has come to characterize our politics. The Leader of the Majority in the National Assembly, Hon Aden Duale, who for the last two years has been advocating a Kenyan and African withdrawal from the Rome Statute, declared on Twitter that “civil societies and their financiers have been ashamed and the rule of law prevailed”. He even went further to say that “the 14th assembly of state parties resolution on #Rule68 has been upheld” and that the verdict had redeemed “the creditbility (sic) of ICC and respect of the Rome Statue.”

Now, it will come as no surprise to anyone that our political class lies. In its daily sermons, it swears fealty to the rule of law even as its members continue violate both the spirit and letter of it. Few will have forgotten the words of Nandi Hills MP, Alfred Keter, at a weighbridge station in Gilgil: “We are the ones making laws; when we want, we break them.”

But the Jubilee coalition has transformed public insincerity into an art form. And little showcases this better than its shifting stand with regard to the cases against the President Uhuru Kenyatta and his Deputy, William Ruto, at the Hague. Their deceptions have been behind the cases mutating from a “personal challenge” as candidate Kenyatta once called them, to a challenge to national sovereignty, which it isn’t, to an example of “race-hunting” on a continental scale, a bare-faced lie.

On local and international fora, the President and his minions have regaled us with tales of “a global standard” on Head of State immunity, conveniently ignoring the standard that our own constitution sets in Article 143 which unambiguously says in subsection 4: “The immunity of the President under this Article shall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity.” The Rome Statute is just such a treaty.

The pattern of deception has inevitably filtered down to discourse on other local issues. “It begins with you” has become the catch-all phrase that absolves the government of any responsibility when it fails to do its job. When corruption flourishes and infects all arms of government, the proffered solutions are not to fix the systems that incentivize and reward such behaviour, and to punish the corrupt. Rather, we are treated to the fiction of a society-wide malaise which will be solved by teaching ethics classes to primary schoolkids.

Similarly, when the government fails in its duty to provide the public good of security, it attempts to socialize this failure and to blame everyone in society. The problem we are told, is that we don’t share information with the state. In reality, the fact that security forces had prior intelligence on local terror attacks does not seem to have made them any more effective in stopping them. Further, a senior police officer pointed to the real problem when he told the Nation: “There was never a review meeting on how we handled incidents”. As a result, the paper goes on to say, “the police service has basically learnt nothing from Westgate, Garissa, Mpeketoni and others.” Many will remember that the President’s promise of an inquiry into security failures surrounding the Westgate atrocity a has similarly failed to materialize, as has his vow to punish those responsible for the them.

A final example of the government’s mendacity is the paucity of public information on the El Adde attack. A month after the Al Shabaab terror group overran an African Union base manned by Kenyan troops in southern Somalia, we are yet to get definitive figures for how many soldiers we lost and how many were captured. Despite promises by CS Raychelle Omamo and the Chief of Defence Forces General Samson Mwathethe to provide a full account, we still only have rumours and unconfirmed reports that put the death toll at above 100, with some sources suggesting up to 130.

Meanwhile, at the funerals going on around the country, the government continues to “honor our fallen heroes” with bugles and gun salutes and flag-draped coffins. Yet the one thing that would truly honour their memory continues to stay hidden: a proper telling of how and why they died, and a learning of lessons have been learnt to ensure the same never happens to their comrades. The reason the authorities remain vague about the details is not to protect national security but rather the backsides of senior officers and officials.

While it may, in a limited number of extreme instances, be in the national interest to temporarily withhold information from the public, across the world it is clear that officials lie mostly to escape censure for mistakes and shortcomings. Just as has been the case with terror attacks on civilians inside Kenya, the silence over El Adde, for example, is intended to keep the Kenyan public, not the Al Shabaab (who already know the scale of the damage they inflicted) in the dark.

Politics is often described as a dirty game. “One must know how to colour one’s actions and to be a great liar and deceiver” wrote Machiavelli of the successful ruler, adding that "men are so simple, and so much creatures of circumstance, that the deceiver will always find someone ready to be deceived."  In a Machiavellian world, where public officials are only concerned with the acquisition and perpetuation of their power, it may be permissible to routinely mislead the citizenry. However, the sovereign is also urged to “not deviate from the good, if that is possible”. Ethics and moral behaviour are thus not entirely outside the purview of politics, even in a dictatorship. And they take on an even more important role when it comes to democracies, where citizens require accurate and sufficient information in order to hold public officials to account.

However, nowadays politicians and public officials also routinely lie, and the public has come to expect that they will do so. This expectation, in turn leads to a debilitating cynicism about the political process and a resignation to the inevitability of deception. When the lies are not just expected but acceptable, when they no longer arouse outrage and when national policies can be built around them, then societies are treading on very dangerous ground. The disastrous 2003 US invasion of Iraq, one of whose consequences is the rise of ISIS, is but one recent example of the havoc deception can wreak.

So when we permit Interior Cabinet Secretary, Gen Joseph Nkaissery, to get away with declaring public scrutiny of his ministry’s questionable spending a threat to national security; or the President to escape censure for inciting mobs into destroying private property via an illegal directive against alcohol; when patently unconstitutional laws are used to punish legal conduct and expression that those in power do not like; then we are putting our liberties, our democracy, our very lives and prosperity in great peril.

The words and sentiments streaming out of the mouths of our public officials should mean something. And the people behind them should be held to account.  We do not pay them to lie and mislead us or to treat us like children who can’t handle the truth. Or worse, to subvert the constitution, the very thing that limits the power they can wield over our lives.

So as we snigger and make fun of the antics of Hon Duale and his friends over the ICC, we should be very careful lest we wake up and find that the joke is on us.

Ezekiel Mutua, Bloggers And The Dangers Of GoK's Single Story

Ezekiel Mutua undoubtedly has a knack for self-promotion. When I first met him as Secretary General of the Kenya Union of Journalists more than a decade ago, I could tell he was a man of no small ambition. Today, as head of the Kenya Film Classification Board, he has found a way to insert the previously obscure regulator into the limelight.

However, the way he has gone about it in complete disregard of what the law says about his organization’s mandate. The laws he claims give the KFCB powers to police what Kenya’s media broadcasters carry between 5 a.m. and 10 p.m. (the so-called “watershed”) actually do nothing of the sort.

And this is not the first time the Kenyan Government has tried to use the organisation as a de-facto media regulator. In 2001, the then Minister of Information, Transport and Communications and now opposition luminary, Mr Musalia Mudavadi, published a notice in the Kenya Gazette which purported to place the media under the ambit of the KFCB, then more honestly known as the Kenya Film Censorship Board. This occasioned a six-year court battle with the Nation Media group which ended in a High Court judgement quashing the notice and describing it - and thus Mr Mutua’s current near identical power grab – as “not necessary or justifiable in a democratic society such as Kenya”.

Unfortunately for Kenya, Mr Mutua is more the rule rather than the exception when it comes to the Uhuru Kenyatta administration’s attitude towards the law. He is basically following a script that has been perfected by the Kenyan state which routinely exercises powers it does not have, ignores what the courts have to say when it deems it inconvenient, and appears to consider the constitution more as a set of guidelines rather than actual rules.

This attitude has been on display in the state’s reaction to the death of dozens of Kenyan soldiers in El Adde, Somalia when Al Shabaab militants overran their base two weeks ago. Under the guise of defending the national interest and stopping Al Shabaab propaganda, the government issued a warning against republishing or even retweeting gory images of dead soldiers which the terror group has uploaded online. This appears to have now mutated into a blanket ban on publishing any imagery (except its own) of the aftermath of the battle.

Pursuant to this, several people, including journalists and bloggers, have been arrested for questioning reportedly over images they shared via online platforms. The most prominent of these was Yassin Juma who spent the last weekend in a cell after being arrested for posting images of burning KDF vehicles, and Eddy Reuben Illah who has been arraigned in court for allegedly sharing pictures of dead soldiers with members of a WhatsApp group.

But is doing this actually illegal? Initially, media reports about the government’s warning cited the Penal Code Section 66A which appears to justify the government’s actions.  In fact, a widely circulated charge sheet indicated that Mr Illah would be charged under that law. What the media failed to highlight was that the section was part of the controversial Security Laws Amendment Act and had been struck off as unconstitutional by the courts.

In any event, Mr Illah was actually prosecuted for contravening Section 29 of the Kenya Information and Communications Act, a Nyayo-era law that criminalizes using “a licensed telecommunication system” to either send offensive, indecent, obscene and menacing messages; or to annoy, inconvenience and cause “needless anxiety” by means of a false message.

Needless to say, none of these terms are actually defined in the law, giving wide leeway for abuse by the authorities. Even more importantly, the courts, in their ruling throwing out the previously mentioned Section 66A of the Penal Code, already comprehensively dealt with the issue of images of terror attacks.

In court, the Attorney General had justified the introduction of the amendment by arguing that “freedom of expression has been abused by the media in publishing pictures of fatally injured people and of security operations, to the advantage of the publicity sought by terrorists.” However, in rejecting this the court declared:

“This new offence under the Penal Code that seeks to punish 'insulting, threatening, or inciting material or images of dead or injured persons which are likely to cause fear and alarm to the general public or disturb public peace' thus limits the freedom of expression to a level that the Constitution did not contemplate or permit, and in a manner that is so vague and imprecise that the citizen is likely to be in doubt as to what is prohibited.”

The parallels with the aforementioned KICA Section 29 are hard to ignore. Essentially, the government is doing an Ezekiel Mutua, claiming to exercise powers it does not have and ignoring court rulings that say it does not have them. Now, none of this is to say that publishing images of dead KDF soldier is a good idea. However, the government claims it is illegal, which it clearly isn’t and is using the law to intimidate those who present a different narrative from the one it is propagating.

An even more sinister reason is to be found in the words of one of the bloggers hauled in for questioning by the police. Cyprian Nyakundi, who spent two days in police custody before being freed on intervention of the Office of the Director of Public Prosecution, said he was questioned on “the whereabouts of other wanted bloggers and why he was critical of government at large.”

Thus this is a thinly veiled attempt, not to preserve national security, but to stamp out dissent. It fits into a pattern of media intimidation which has seen journalists who did not toe the government line fired from mainstream newspapers reportedly at the behest of State House. That campaign has now reached the shores of Kenya’s vibrant social media scene.

Like Mr Mutua, the Uhuru government has nowadays developed a knack and taste for self-aggrandizement. But we should all be very concerned when it is willing to subvert the law to ensure that its story is the only one that can be told.

Why The KDF Lion Must Learn To Speak

Until the lion learns to speak, the tale of the hunt will always glorify the hunter. The truth of this statement is today being demonstrated in the aftermath of the devastating attack by the Al Shabaab terror group on the AMISOM base at El Adde in southern Somalia.

With over Kenyan 100 troops feared dead, this is turning out to be not just a tactical victory, but a propaganda coup as well for the Al Qaeda linked militants. Panicked Generals in both AMISOM and the KDF have effectively shut down their public communications, effectively handing the airwaves to the enemy. And Al Shabaab has not been slow to exploit this opportunity. For nearly a week its tale of the hunt has been propagated around the world pretty much unchallenged.

The modern media operation is a 24-hour beast that needs to be fed round the clock. National and international mass media is the most important disseminator of news for the vast majority of people and what it carries shapes opinions and influences decisions. It is for this reason that terrorists make every effort to maximize coverage of their attacks.

And perceptions do matter. Especially in war, which the great Prussian general and military theorist, Carl von Clausewitz described as “the continuation of politics by other means.” Politics, as is readily apparent, is a game of perceptions and opinions. To a great extent, wars are too. They end when the losing side acknowledges it cannot win (except on the rare occasion when it is entirely eliminated).

So war itself can be seen a great communications effort, albeit one where the message is transmitted via bombs and bullets. Sun Tzu’s advice that “victorious warriors win first and then go to war” can be paraphrased thus: “Win first, then go tell your opponent about it.”

In today’s world, the fight against the terrorists is not only waged on the ground, but on newspaper pages, TV and radio broadcasts and on internet as well. This is especially true of the struggle against Al Shabaab.

Most Kenyans tend to mistakenly think of the group as a rag-tag militia with little in the way of effective organisation. In reality, Al Shabaab is well organized and resourced, and what it lacks in tanks and armour it makes up in communications capabilities.  It has established a media department which is adept at producing slick propaganda videos and churning out pictures and footage to feed the media beast with its version of events.

Now, it is true that wars are not won by press releases. But it would be a great mistake to conclude that effective communications don’t matter. In its first three years, AMISOM struggled to find its voice. Its tale was told by others, including by its enemies and detractors. As a result, it struggled to convince Somalians of its intentions, to get countries to deploy troops and to articulate its need for more and better equipment. By 2010, there was talk of “constructive disengagement” and winding up the “failing mission”.

It was in recognition of this, and at the request of the AU, that in 2009 the UN provided AMISOM with a team of civilian communications consultants as part of a wider logistical support package. I was a part of this team, which is based in Mogadishu, for nearly four years and witnessed fist-hand how well-executed communications strategies made AMISOM more effective on the ground.

From countering Al Shabaab propaganda to explaining its mandate and operations to a sceptical international audience to communicating successes on the ground, AMISOM became more adept at influencing local and international perceptions and managed to turn its reputation around. By the end of 2012 this effort- combined with the success its troops delivered on the ground- had countries competing to contribute troops and the UN Security Council voting to beef up its support for the Mission.

One of the many important lessons I learnt is that to compete effectively in the media arena, one has to be fast, first and provide accurate facts. Even, and perhaps especially, when it was bad news, you would rather the public heard it from you and not from the other side. It is a race to get your side of the story out first and to control the narrative. Another lesson was the critical need always to preserve your credibility by never putting out information that one knows to false.

On both these counts, the Kenyan Government has performed poorly. AMISOM has a long standing policy of letting its troop contributing countries speak on casualties and so its silence is somewhat understandable. The Kenyan state and its defence forces, on the other hand, has worked to prevent any details on the operation leaking out, including by prosecuting people who forwarded purported pictures of the dead Kenyan soldiers issued by Al Shabaab. It has also now provided a provisional version of events via the Chief of Defence Forces, Gen Samson Mwathethe, elements of which not only contradict its earlier statements, but also fly in the face of the few facts that have already been established.

This sadly fits into pattern that the Government has followed whenever confronted with failure. It has done little to shore up its credibility in speaking on matters security since the Westgate disaster. It has tried to impose its “Official Truth” and refused to address any holes in yarn that it has spun. More than two years later, there has been no credible official account of what happened inside that mall for four days. It is a curious position for a government famous for its formidable public relations machine to be in.

Regardless, it is clear that we can ill afford to cede the media space to Al Shabaab without a fight. Our lion must learn to speak.