Sunday, July 25, 2010

Civil servants shouldn’t campaign

Sunday Nation 25 July 2010

With only 10 days left to the referendum over the Proposed Constitution of Kenya, campaigns have gone a notch higher, and both camps are presumably unleashing their secret weapons.

A dispassionate examination of the Proposed Constitution clearly demonstrates that despite its bulk and lots of legal theory, it is a vast improvement on the current constitution.

Indeed, listening to the proponents of the ‘No’ camp, it is very difficult to find irrefutable proof of the “badness” of the draft.

All the objections over the land chapter, Kadhi’s courts, abortion, homosexuality and even the relevance of international treaties duly ratified by the government can be easily dismissed by reverting to the Proposed Constitution itself.

Despite the obvious advantages enjoyed by the ‘Yes’ camp, which also brings together most of the senior politicians in government, strange tactics have been employed to ensure a ‘Yes’ victory.

The aim may be to ensure a landslide victory for the Proposed Constitution, but the strategy will definitely backfire in future.

The strategy, which sets a very dangerous precedent, is the use of permanent secretaries and other senior civil servants in campaigning for the document.

This may look like a very bright idea at this time in our history, when the government feels that all resources must be deployed to ensure that this great opportunity is not wasted.

However, viewed as a precedent, nothing will stop a future administration from declaring another political contest a “government project” and ordering all civil servants to campaign for it!

In 2005, the government “proper” decided to push for the enactment of the so-called “Wako Draft” after the collapse of the Bomas process.

Critics pointed out then that the draft could not be characterised as a “government project”, and use of government resources in campaigns were denounced as illegal attempts to force a flawed draft down the throats of Kenyans.

Because the opponents of the Wako Draft were more adept at galvanising the national mood against it, Kenyans voted against it by a modest margin of 55 per cent to 45 per cent.

The organisational skills of the opponents were demonstrated later with the formation of the Orange Democratic Movement, which managed to secure a majority in Parliament.

Today, many of the Orange campaigners are on the ‘Yes’ side, and it appears hugely hypocritical for them to accept that this time the Proposed Constitution is a government project and it is alright for civil servants to be employed in campaigns all over the Republic.

The ‘No’ side is well within its rights to complain that the government is denying them a fair playing ground.

Despite Agenda Four of the National Accord identifying a new constitution as one of the key reforms needed to save Kenya from itself, it did not specify that any draft would be considered a government project.

Coercing civil servants to support the Proposed Constitution and even requiring them to campaign for it probably constitutes an abuse of the rights of those opposed to it.

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

Monday, July 19, 2010

Why Kenya is, indeed, a fragile state!

Sunday Nation 18 July 2010

A recent editorial published in the Daily Nation and attributed to the minister for Foreign Affairs, Mr Moses Wetang’ula, purported to defend Kenya against claims that it ranked highly in the league of failed states.

This was in response to a publication by the Foreign Policy Magazine that allegedly ranked the country at number 13 on its annual list of failed and potentially failed states.

For the avoidance of doubt, it must be noted that Kenya has featured in this index since it was first published five years ago, when we debuted at position 25 among failed states.

Every year subsequently, we have managed to maintain our place near the top of the list, and many events since the ranking began have demonstrated its accuracy, at least with respect to Kenya.

The Foreign Affairs minister was on hand even in 2005 to trash the index claiming that, in addition to the fact that it is the only developing country hosting a UN agency headquarters, it was also ‘‘a regional and continental powerhouse that makes a critical contribution to peace-keeping missions around the world and is respected across the board’’.

In his opinion, this was abundant evidence that Kenya was not a failed state and was not even at the risk of failing in the near future.

The rest, as they say, is history.

According to the American non-profit organisation Fund for Peace, the characteristics of a failed state include: the loss of physical control of its territory, or of the monopoly on the legitimate use of physical force therein; erosion of legitimate authority to make collective decisions; inability to provide reasonable public services; and inability to interact with other states as a full member of the international community.

Mr Wetang’ula’s defence of the country from allegations of state failure bear the hallmarks of a textbook response that does not benefit from any intellectual input from the ministry’s civil servants.

Instead of addressing the issues identified in the index, the minister simply rehashes the arguments made since 2005 that our security role in Eastern Africa and hosting the UN headquarters is evidence of our stability.

To maintain currency, the minister threw in the forthcoming referendum as further evidence of the stability of our nation.

Unknown to the minister, such rehearsed but thoughtless responses only serve as further evidence of the fragility of our state.

For instance, despite strenuous denials in the years preceding the 2007 elections, post-election violence and the need for intervention by the international community demonstrated clearly that state failure was a distinct possibility in our case, if not the reality.

The government completely lost physical control over vast swathes of the republic. The legitimate authority of the Kibaki Government disappeared, and was only partially redeemed by the formation of the coalition government under the supervision of the international community.

The inability to provide reasonable public services is acknowledged even by the government itself! Senior government officials are to this day unable to travel to the US and other countries to participate in international affairs.

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

Tuesday, July 13, 2010

Kenyans, stop this hypocrisy over MPs’ pay

Sunday Nation 11 July 2010

In their usual inimitable fashion, members of the Kenyan Parliament voted to increase their salaries and allowances to levels dozens of times higher than the national average income.

Predictably, there has been a hue and cry from all segments of society, including some MPs, Ministers and the Prime Minister himself.

Listening to this hullaballoo, one is reminded of a person continually hitting his head against a wall in the hope that it will give way and allow him passage in the same way a door would.

Instead of addressing the root cause of the problem, we are happier ranting and raving against the symptoms for a while, before we move on to the next big thing.

In my view, parliamentarians have not broken any law, written or unwritten, in approving their pay rises. The constitution gives Parliament the powers to appoint tribunals to review their pay and recommend new rates.

It does not bar Parliament from varying the recommendations of the tribunal upwards or downwards and in fact states in section 45B sub-section 14 that “This part shall have effect notwithstanding any other provision of this constitution and, accordingly, if any such provision is inconsistent with a provision of this part, the provision of this part shall apply.”

Specifically, Parliament cleverly exempted itself from the provisions of section 48 of the constitution, which forbids the discussion of any “Money Bill” in Parliament without “the recommendation of the President signified by a minister”.

Section 45B was crafted to overturn this provision, allowing the MPs to run riot with the Exchequer in order to satisfy their financial needs.

The net effect of this move was to protect their salary and allowances from any oversight body other than themselves, finally confirming Parliament as a supreme body above even the constitution.

The second thing that we must consider before we condemn our parliamentarians is the nature of the Kenyan psyche. It probably is human nature to want to live a better life in future than you did in the past.

It is even more imperative to ensure that your offspring live a better life than you did. If one’s past is riddled with visions of poverty and want, it is only natural that one will do everything in their power to ensure that they never have to face the same difficulties again in future.

Our MPs are therefore only being true to type, and there is no use condemning them for succumbing to their own base instincts at the expense of their starving constituents.

At the end of the day, it all boils down to self-preservation!

This explains why even the wealthiest people in this country, who acquired their wealth fraudulently from public coffers, still consider themselves poor and in need of state largesse.

How else would one explain the spectre of grizzled old men taking up cudgels to fight for ‘‘our land’’ in the new constitutional dispensation?

How would you explain the involvement of some of the country’s richest families in monumental scams in the class of Goldenberg and Anglo Leasing?

To illustrate this point, one would challenge the loudest noise-makers to put themselves in the MPs’ shoes, replete with the almost completely unchecked powers and privileges they enjoy.

It is a dead certainty that if you put any of the loudmouths into Parliament, they would have no qualms at all voting to double their salaries.

As a matter of fact one need not engage in thought experiments over this issue. Erstwhile reformists in the Ninth and Tenth Parliaments joined hands with their bitter rivals every time it came to discussing their salaries.

The first order of business for the Ninth Parliament, which marked the end of the Kanu kleptocracy, was to increase their salaries and allowances.

Subsequently, they have unanimously voted to prevent the government from taxing their pay, despite loud protests from their own constituents.

It is the height of hypocrisy for Kenyans to keep making noise about the gluttony of their representatives when, in real fact, they are just envying the positions these people hold.

Members of Parliament are merely representative of the society that elects them, and we should not saddle them with values and attributes that are alien to them.

Where do we expect them to get values such as integrity, humility, and a pro-people mentality when these are absent in our society? How should they behave when they discover that they can exercise their avarice unfettered by any legal or constitutional bottlenecks?

To paraphrase a biblical injunction, let those without greed and envy in their hearts cast the first stone at our MPs.

The rest of us should just shut up and allow them to run roughshod over us while we applaud and egg them on!

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

Sunday, July 4, 2010

Kenyans should insist on sane leaders, not voters

Sunday Nation 04 July 2010

The recent court ruling on the right of prisoners to vote at the referendum adds to the increasingly fashionable trend that has seen the Kenyan judiciary transform itself from the traditionally stuffy conservative outfit into an activist institution.

The key finding in this ruling was that prisoners constitute a segment of “all Kenyans”, and thus share the constituent power to participate in determining the structure of the state through a constitutional referendum.

Notwithstanding the firmness or otherwise of the academic and practical foundation on which the ruling is anchored, it opens an aperture through which future governments will be compelled to allow prisoners to participate in general elections.

This will happen even though the court indicated that the present ruling applies only to the referendum, and not to parliamentary and presidential elections. Indeed, the reasoning elaborated in the judgment suggests just this eventuality given that it questions the role of restriction of voting rights in the rehabilitation of convicted criminals.

We must of course defer to learned legal minds to clarify the implications of this ruling that has been hailed as landmark jurisprudence before we can fully comprehend its import. We must even anticipate similar rulings in future regarding other special interest groups as Kenya enters the era of prodigious litigiousness. However, a certain portion of the ruling raises interesting issues as far as the right to vote generally is concerned. In their judgment, the judges averred that the Constitution of Kenya “does not in any way exclude inmates who are over 18, of sound mind and who have not committed an electoral offence from voting in a referendum”.

Read in isolation this ruling implies that there are only three conditions that must be satisfied as far as voting in the referendum is concerned: Age over 18 years, having a sound mind, and not having been convicted of an election offence.

The age of a citizen and his or her criminal history are relatively easy to determine, and they can be easily codified for purposes of determining eligibility to register as a voter.

Determining soundness of mind would, however, be more troublesome. Under ordinary circumstances, the law presumes everyone who has attained the age of majority to be of sound mind, and anyone who makes claims to the contrary would be required to provide concrete proof of the fact.

This is why throughout the constitution and most written laws, the finding of unsound mind is never implied and must be actively proved. For instance, the constitution only bars people who are lawfully “adjudged or otherwise declared to be of unsound mind” from registering as voters or vying for political posts. This means that the “unsound mind” must not only be alleged, but it must also be competently demonstrated.

This raises questions that seem to have been largely glossed over by the learned judges. Why do we bar individuals declared to be of “unsound mind” from voting? Who determines whether someone is of unsound mind, and under what circumstances? Can an individual be declared to be of unsound mind today, and later regain “soundness of mind” for purposes of voting?

There is no medical equivalent for “unsound mind”. We know that there are a variety of mental disorders of varying severity that may affect an individual’s thinking and reasoning abilities for variable periods of time. Many of these conditions are amenable to treatment, and as long as they are under control, the individual is capable of making important decisions in his or her life.

Only a very brave psychiatrist (probably with an intractably ill patient) would declare their patient so mentally impaired that they should never be allowed to vote or make other important decisions in their life. The upshot of this argument is that “soundness of mind” is a difficult state to prove, and even when clearly demonstrated in one instance, it may not persist long enough to make a difference in the long run.

If the intention of the law was to prevent people with impaired mental health or poor reasoning capacity from voting, it should have mandated a mental status examination before one is allowed to vote, given that there is often a time lapse between registration and voting when a person’s “sound mind” might develop other ideas.

In my opinion, more stringent mental health criteria should be applied to those aspiring to political leadership in our country, instead of going out of our way to ensure that a voter’s decision is the product of reason, and not insanity. Indeed, it is voters with arguably “sound minds” who have repeatedly saddled our country with “leaders” who would be better served with an involuntary admission to a mental hospital.

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