Sunday, November 29, 2009

Why are politicians dead set against an executive PM?

Sunday Nation 29 November 2009

As the clock ticks towards the end of the stipulated period for comments on the harmonised draft constitution, it is becoming clear that any erudite discussion by ordinary Kenyans faces insurmountable obstacles.

Politicians are already tainting the debate with non-issues in order to obfuscate matters and leave them with the real power to decide what goes into the constitution and what does not.

One argument some have been repeating consistently is that the harmonised draft forces a presidential candidate to run around the country trying to garner 50 per cent plus one vote and 25 per cent of votes in over half the regions only to be rewarded with a practically useless post.

It is difficult to deal with this issue without asking a series of questions in return. For instance, why are people becoming so worked up about a hypothetical candidate who understands the constitution and chooses to follow its provisions to become a “popularly elected president”? If indeed everyone has an equal opportunity to become a leader in this country, why are these politicians so dead set against an “executive” Prime Minister?

Why are these politicians avoiding the issues that are making them fear these positions as proposed in the harmonised draft, and choosing instead to concentrate on the positions themselves? Is it not clear that their fears are driven by the individuals currently holding the positions and those aspiring to hold them, rather than the powers inherent in the positions themselves?

Would they still work themselves into a lather if all the top politicians in Kenya were to rule themselves out of contention at the next elections? Discussion on the executive chapter of the harmonised draft is fast turning into a farcical repeat (in reverse!) of the 2005 referendum, and already some politicians have threatened to campaign against it because it “emasculates” the president and gives the “unelected” prime minister too much power.

Politicians are making singularly uninformed statements such as “nowhere else in the world does a ‘popularly’ elected president not enjoy ‘executive’ power”. Whose interests are they fronting? People are even “popularly elected” to village cattle dip committees, and the only “power” they enjoy is to preside over cattle dip committee meetings.

This debate is clearly not about this draft constitution at all, but about contemporary fears and entrenched prejudices. The terms “president” and “prime minister” in this country have acquired the character of the individuals who have occupied those positions in recent years, and these are the perceptions currently driving the debate.

The prime minister and several other politicians have wisely decided not to trumpet their own opinions concerning the draft in the hope that their supporters will come to their own conclusions. It was, however, reported in the press that the president expressed support for the document. Supporters of President Kibaki and Prime Minister Raila Odinga have chosen to ignore similar counsel and continue to engage in combat.

It is my considered opinion that discussion of any of the specific clauses in the draft constitution is useless in any case. As I have repeatedly argued before, what we need agreement on are the basic principles guiding this nation, and the rest will fall into place.

For instance, we may agree, as implied in the draft, that our tribes are bigger than the nation known as Kenya, and that our first loyalty shall be to our tribes and regions and only finally to Kenya. Conversely, we may agree that we aspire to a greater level of involvement in global affairs and do not desire to be tied down by petty tribal loyalties in our quest for a better life for our citizens.

These should form the basis of any constitution we write. If, on the other hand, we do not agree on any of those basic principles, no amount of debating the clauses in the harmonised draft will result in agreement, for the debate will continue to be duplicitous and full of multi-layered innuendo. The end result will be a rejection of whatever document is presented to Kenyans in a referendum.

Indeed the fact that politicians are already mobilising their supporters to reject the draft on trivial grounds illustrates an attitude that the constitution is about the personal needs of the politicians.

All those Kenyans who are allowing themselves to be led this way by a bunch of irredeemably selfish tribal chiefs should never again waste our time complaining about a “bad” constitution and poor governance after April 2009 comes and goes without any fundamental changes in the country’s constitutional structures.

Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University’s School of Medicine:

Friday, November 27, 2009

Weaknesses could pose threat to enactment of new law

Sunday Nation 22 November 2009

With suitable pomp and pageantry, the harmonised draft constitution of Kenya was finally unveiled in Nairobi on Tuesday. Kenyans have been given 30 days to peruse and debate the draft, and suggest to the Committee of Experts any areas they feel need to be changed or addressed to their satisfaction.

No matter what the pundits, bigots, naysayers and other busybodies say, this country is unlikely to come up with any better draft constitution than the harmonised draft this committee has come up with.

This must not be misconstrued to mean that this is the best possible draft that could be produced in this country. On the contrary, it is not far-fetched to suggest that this draft is singularly unimaginative when it comes to re-engineering the architecture of the state.

For instance, regarding devolution, the draft chose to stick to the current “regions”, succumbing to the ethno-political demagoguery that decreed that some provinces would only be split at the expense of spilt blood despite being large and unwieldy.

The proposed counties also bear an uncanny resemblance to the “Moi” districts, some still carrying the stigmata of failed nomenclature, for instance “Butere/Mumias”!

In the interests of honest debate and consideration of issues, it is wise for us to acknowledge some weaknesses in the Kenyan psyche that will pose a serious threat to the enactment of a new constitution.

One, no matter what is contained in the draft constitution, the majority of Kenyans will not read it, and will rely on their ethno-political warlords to read and interpret it for them.

Despite having the draft in all possible forms short of recruiting personal tutors for each and every citizen and their dog, nobody is going to give it any level of sustained attention.

This was true with the last referendum and it will continue to be true with the current constitutional review process, unless something very fundamental shifts in the Kenyan psyche.

Two, those that attempt to read the document will latch onto one or two issues and be blinded to the rest of the constitution. The religious right will definitely continue beating war drums on such marginal issues as the place of religious courts in the constitution as well as sexual orientation.

Politicians will try to interpret the document in light of the current transitional arrangement, and the positions in the document will be replaced with individual names to see how they fit.

Three, current affairs will continue to taint the view of the draft constitution. Contemporary red herrings such as the Mau forest stand-off, 2012 General Election realignments and post-election violence resentments will heavily taint the interpretation of various provisions in the harmonised draft.

Finally, it would be wise to indicate that no constitution, new or old, is going to save Kenyans from themselves. The success or failure of a new constitutional dispensation will depend on the entrenchment of a new culture of constitutionalism. A system that guarantees a healthy respect of the rule of law is more important than the letter of the law itself.

The biggest failure of the Kenyan state since independence has been the blatant disregard for the law by those that are meant to enforce it, and the phenomenon of “impunity” is firmly anchored in this historical foundation.

At the end of the day, it should be reasonable to agree that as long as the constitution is written by well-meaning citizens with the good of the nation at heart, it does not matter what system of government it proposes or how many levels of devolution it provides for. As long as Kenyans are willing to respect the document and the resultant laws, the constitution will be good enough for the majority.

There is therefore no point wasting a lot of resources subjecting the harmonised draft to scrutiny by the average Joe, who will not bother to read it anyway. It further defeats logic to subject the final draft to a referendum, given that a majority of the voters will be voting for or against a document they will not have read.

Unless the above-listed difficulties are surmounted one way or another, there would remain only one practical solution to this conundrum. The president (or the government) should simply declare a state of emergency, abrogate the current constitution and replace it with the harmonised draft which contains adequate transitional mechanisms as it is. Undesirable sections and provisions will be easily amended later as provided for in the draft.

Any other route to a new constitution stands the risk of being hijacked by entrenched interests.

Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University School of Medicine.

Sunday, November 15, 2009

Is it the President or AG who’s above the law?

Sunday Nation 15 November 2009

In 1991, newly appointed Attorney-General Amos Wako stood on the floor of Parliament and proclaimed that “a characteristic of the rule of law is that no man, save for the President, is above the law”.

All analysts and academics who have studied Mr Wako’s career as Attorney-General have focused on this statement as an indication of his subservience to the whims of a corrupt Executive and evidence of his complicity in subverting the will of the people.

What is lost in this analysis is the more fundamental implication of the statement as regards the position of Mr Wako in this scheme of things. In his usual cheeky manner, the man was laying down new law by fiat, destroying in one fell swoop the principle of equality of all under the law.

If, indeed, it were true that the President was above the law, why did Daniel arap Moi not make the proclamation himself? How could a person subject to the law purport to unilaterally amend it without recourse to the originators of the same law, and confer immunity to another individual? What was the source of Mr Wako’s authority in proclaiming the President to be “above the law”?

After a close examination of this statement and reviewing the subsequent events, it is difficult not to conclude that the AG’s words had nothing to do with the person or office of the President. In his brief opening remarks at the height of the struggle for political pluralism, he was informing Parliament that he, the Attorney-General, was technically above (or beyond) the law.

In one fell swoop he had arrogated to himself the roles of Parliament, the Executive and even the Judiciary, and would henceforth be beyond the reach of any of these organs of the State.

In Kenya, the AG is a member of the Executive at the same level as a minister of government. He is also an ex-officio Member of Parliament, and sits in the Judicial Service Commission that determines who becomes a judge in Kenya. He also sits on many independent commissions set up with varying mandates, the latest being the Committee of Experts tasked with coming up with a draft constitution.

The AG enjoys security of tenure and cannot be removed except through the recommendations of a tribunal and the concurrence of the President. It is almost impossible to successfully prosecute him for any act he commits, whether as a private individual or as the AG, since he wields the all-powerful weapon known in legalese as nolle prosequi.

He has indeed used this weapon in the past for his own protection and the protection of others. In principle, therefore, the AG is the most powerful individual in Kenya, the only one who is truly “above the law”. It is therefore my considered opinion that the entire struggle for democratisation of the Kenyan state has been misguided and focused on the wrong objectives and individuals.

Allure of power

After singing “Moi must go” for over a decade and a half, he eventually “went”, and soon after this the reform train hit another snag as the erstwhile reformists discovered the true allure of absolute power. It is my conviction that if we seek true reforms in the political architecture of the state, we must train our sights on the State Law Office, and specifically trim the outlandish powers wielded by the Attorney-General.

It is jarring against any conception of “democracy” for one individual to wield so much power without any checks and balances on the functions of the office. It is an indictment on our lawyer activists that they have been unable to see or articulate the enormous problems posed to the integrity of the State by the person and office of the AG until the US government declared him an obstacle in the push for reforms.

Prof Philip Alston, the UN special rapporteur on extra-judicial killings, had earlier described the AG as “the embodiment in Kenya of the phenomenon of impunity”. All these years political and human rights activists have been barking up the wrong tree accusing the President of wielding too much power and exercising it to the detriment of the nation when the real problem lay hidden in plain sight.

The recent revocation of the AG’s visa to the US has resulted in closer scrutiny of his office, revealing the unexamined and unrestricted powers wielded by the holder. Whether or not Mr Wako eventually steps down from office, the reform movement must change tack and create more credible institutions to replace this one-man government in the name of the Kenyan AG.

Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University’s School of Medicine.

Sunday, November 8, 2009

Focus attention on the real examination cheats

Sunday Nation 08 November 2009

As the Kenya Certificate of Secondary Education (KCSE) examinations enter the home stretch, allegations of cheating and exam leakages have risen stridently to fever pitch.

Never mind that the ‘‘evidence’’ proffered this year has consisted of handwritten approximate questions rather than the full papers that have been offered for sale in the past. Indeed, one of the teachers arrested in connection with examination cheating was accused of collecting money from candidates and failing to produce the leaked papers as promised!


Quite apart from the fact that the leakage allegations may be overrated, these allegations point to the very core of the Kenyan problem. We have never seen a scapegoat we didn’t want to blame for one thing or another. Instead of wasting time blaming the Kenya National Examinations Council (KNEC), we should direct our attention to the real culprits in this alleged malfeasance.

The media cannot escape blame for completely missing the point and continuing to blame the examinations council without producing a shred of evidence of culpability on their part. In amplifying this non-issue unnecessarily, they have succeeded only in raising anxiety among the poor candidates whose emotions are already frayed as they face a make-or-break moment in their lives.

The press seems to have been ready to break some sort of news on an exam leakage if only to spite the KNEC after it declared that this year’s exams would be the most secure ever. In the pursuit of an exclusive story, it behoves the media to be responsible and sensitive to the needs of these young people who constitute the promise of a better future for our country.

They are the investment we make in order to enter old age with satisfaction that we have not lived in vain. Destroying their young lives in the search for an exclusive ‘‘break’’ is not only heartless, it is also extremely irresponsible. The second culprit in this saga is the cabal of greedy teachers and other examination staff who spend sleepless nights dreaming up new ways of making money from gullible parents and students by purporting to sell exam papers.

Looking at the so-called ‘‘leaks’’, it appears some people involved in the examination setting chain made educated guesses as to what questions were likely to appear in the exam, and proceeded to sell these guesses in the name of exam leakages. These individuals must be pursued relentlessly and made to face the full force of the law in order to discourage the notion that examination success can be bought.

Another group that needs chastising is that of parents who raise their children to believe that anything goes in the rat-race of life, and that buying leaked examination papers is par for the course. Prominent thieves are glorified in our living rooms and given positions of responsibility, while those that eke out an honest existence are derided as fools for not ‘‘eating where they work!’’

At the end of it all, we expect our children to import values from another planet and grow up as honest citizens building a ‘‘middle-income industrialising country by 2030’’! Given the sick society they are growing up in, it is difficult to blame the teenage students for rushing to purchase anything that would give them an advantage over their colleagues in the examinations.

But for the sake of equity in this discussion, it would be remiss not to mention them as part of the rot that bedevils our failing education system. No matter what society you grow up in, the ultimate decision to steal rests with the individual thief. Any student caught cheating must, therefore, be severely punished in order to deter like-minded colleagues, and to raise the cost of cheating beyond most potential exam cheats.

In my opinion, it is missing the point to accuse the KNEC of ‘‘not doing enough to stem cheating in our national exams’’ when the parents, teachers and students themselves continue developing newer methods of cheating! Indeed, the ‘‘leakage’’ allegations have yet to be solidly proved, given that so far (at the time of writing this) no one has produced a leaked exam paper that has been offered for sale to a candidate unlike in past years.

All there is to show are a few handwritten fragments of questions whose format and language even differs from the final product itself. For the sake of development of this country, we must start being more proactive and demanding more of ourselves before pointing fingers at others for whatever we perceive to be wrong with our society.

Indeed, in a perfect society, the KNEC would not need to make any elaborate security plans for the exams, since nobody would have an interest in gaining an unfair advantage over another by stealing the exams!

Dr Atwoli is a consultant psychiatrist and lecturer, Moi University School of Medicine