Sunday, October 31, 2010

Parliament mustn’t overstep its mandate

Sunday Nation 31 October 2010

During his confirmation hearing last Tuesday, former Law Society of Kenya chairman Ahmednassir Abdullahi questioned Parliament’s role in “vetting” him and other appointees to the Judicial Service Commission (JSC).

The lawyer argued that, having been elected by the LSK as provided for by the Constitution, no other authority had powers to purport to “vet” him before his appointment to the JSC.

The parliamentary committee that was tasked with this vetting process was taken aback, but the lawyers in its midst claimed to be acting on the authority of the people of Kenya to ensure that “the names before it are adequate”.

A committee member assured Mr Abdullahi that what they were doing was “perfectly legal, perfectly constitutional and perfectly within the procedures of the National Assembly”, further asserting that “the National Assembly has its rules on how Parliament approves the nominees”.

Herein lies the problem. A plain reading of Part 4 of the Constitution of Kenya reveals that the only role the National Assembly has in the appointment of members of the Judicial Service Commission is provided for in Article 171 (2) (h).

This section of the Constitution provides that two members of the public, a woman and a man, shall be appointed by the President “with the approval of the National Assembly”.

Parliament further has a role in the appointment of the Chief Justice and the Attorney General through separate mechanisms, and the two are members of the JSC by virtue of their positions.

Beyond these, the Constitution confers sole authority on the judges of the Supreme Court and the Court of Appeal, the association of judges and magistrates and the Law Society of Kenya to fill the remaining vacancies in the JSC under Article 171 (2).

The National Assembly therefore has no constitutional mandate to vet or otherwise interfere with the appointment of those members of the JSC elected by other bodies.

The framers of this section of the Constitution had very clear intentions of separation of the organs of state, restricting the National Assembly’s role to that of scrutinising and approving or rejecting appointments made by the President in order to ensure that the larger national interests were served.

It is important to raise this important point early in the implementation of this Constitution in order to prevent future attempts by the legislature to usurp the roles of other arms of government and the citizenry at large.

Purporting to “vet” individuals who are duly appointed to a constitutional commission amounts to overstepping its mandate, and reverting to the pre-promulgation stance where Parliament once sat as the authority that nominated, vetted and virtually appointed the members of key constitutional commissions.

Under the new Constitution, members of these commissions must owe allegiance only to the Constitution and to the people of Kenya collectively, and not to any single individual or institution.

The committee’s assertion that Mr Abdullahi was seeking a constitutional interpretation falls flat, given that he was only stating the clear provisions of the Constitution.

In any case, if the MPs insist on this course of action for the remaining members of the JSC, someone must quickly ask the Court of Appeal to perform the “interpretation” function of the Supreme Court as provided for in Section 21 of the sixth schedule.

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

Sunday, October 24, 2010

Siege mentality only protects thieves

Sunday Nation 24 October 2010

After my comment on the appointment of the Kenya Bureau of Standards CEO was published last Sunday, my inbox was inundated with responses, most falling in either of two categories.

The first group of responses expressed disgust at the minister’s decision, lamenting similar past occurrences in the grand coalition government and asking that due process be followed in such appointments. These were in the minority.

A larger number of correspondents lamented that the minister’s decision was being bashed simply because he is Kalenjin and had appointed a fellow tribesman to a prominent post in his ministry.

They averred that there would have been no furore had the minister appointed an individual from any other tribe to the position, whether the law was followed or not.

The suspension of the Higher Education minister William Ruto in the middle of the week only served to intensify the vituperation, with many pointing out that a conspiracy to demonise and eliminate prominent Kalenjins from positions of authority was afoot.

One of my correspondents actually stated it more graphically: “Kalenjin-bashing seems to be the in-thing now”.

It should be noted that the people holding these opinions are upright Kenyans to whom a significant level of intellectual achievement can be ascribed. Many are opinion leaders and what they say often reflects in an intellectual manner what the crude feeling on the “street” is.

It is also interesting to note that all those that supported the minister’s action were from his tribe, while those against his decision were more heterogeneous.

It would be completely dishonest to say that these reactions were unexpected. Kenyans have perfected intellectual arguments to clothe their own tribal chauvinism, and whenever a person is touched who belongs to the “other tribe” they eloquently wax lyrical about good governance and transparency.

However, whenever one of “their own” is touched, they come out guns blazing with pseudo-intellectual arguments about “good judgment, balancing the ethnic equation” and similar apologia.

This phenomenon is not restricted to intellectuals from any one tribe in this country.

We witnessed it recently with demonstrations in Bungoma over the fate of the Foreign minister Moses Wetangula over the Japanese embassy scandal.

Similar tribal demonstrations have been held in the past whenever the fortunes of some tribal chieftain are threatened and he utters the famous war-cry: “My people are being finished”.

It is time to expose this kind of reasoning for the vacuous hogwash it is. Many people belonging to communities whose members have occupied powerful positions in this country perpetuate a siege mentality in which they see any action against their tribes mate as a tribal witch-hunt.

They refuse to objectively examine the evidence, in the mistaken belief that loyalty to the tribe comes first.

We must realise before it is too late that we cannot eat our cake and have it. We cannot continue spouting platitudes about a taunet ne lel (new beginning) for Kenya while at the same time hiding behind pseudo-intellectual posturing to maintain a thieving cabal in power.

We must realise that it is either one or the other.

We either accept the dictates of the new Constitution and allow a dispassionate application of the law, or dispense with it altogether and continue with business as usual.

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

Sunday, October 17, 2010

Kosgey’s decision evidence of impunity

Sunday Nation 17 October 2010

Very few post-promulgation actions by the grand coalition government demonstrate the need for a truly fresh beginning like the recent action by the Industrialisation minister Henry Kosgey.

The minister, in keeping with a time-honoured practice by successive post-Kanu governments, allegedly chose to ignore the recommendations by the board governing the Kenya Bureau of Standards (Kebs) and selected an individual who shares his name to be the organisation’s CEO.

Notwithstanding the subsequent arguments about the lack of unanimity in the board’s decision, and the interpretation of the minister’s powers under the relevant Act of Parliament, the minister’s action needs to be scrutinised more closely.

Scientists operate on the premise of probabilities in most of the analyses they do. Coincidence plays little or no part in a scientist’s life, and every event can be explained fully, provided all the initial conditions are known.

Consider this scenario: Under some future government, you are appointed the Cabinet secretary for one ministry or other. Now a vacancy arises in one of the parastatals under the ministry, and there are very clear statutes governing how the vacancy is to be filled.

The board governing the parastatal follows the laid down procedure, and finally hands you the name of the most qualified applicant. To your utter surprise, you discover that the candidate is none other than your own brother.

Average Kenyan

What would the average Kenyan do in such a situation? Inevitably, the answer to this question appears simple to many — they would just go ahead and, on the strength of the board’s recommendation, appoint their brother to head the parastatal.

They would thank their lucky stars that their brother is so clever that he did not need any influence-peddling on their part to clinch the coveted position in the ministry. But in a civilised society, the answer would not be that simple.

The best approach, in my opinion, would be to ask the board for all the minutes and documents they relied upon to make their decision, and scrutinise these with a fine tooth-comb.

The aim of the scrutiny would be to satisfy oneself that one’s brother is indeed the most qualified of all possible candidates, and that he won the job purely on merit and in a competitive, objective process.

Only after being satisfied that this was the case should one make the appointment, and be prepared to answer all sorts of questions from a suspicious public whose first reaction would be that the minister is a despicable nepotist.

In relation to the Industrialisation minister’s decision, is it possible that the minister went through a process such as the one proposed above?

Has he adequately addressed the concerns of the suspicious public that his decision was swayed not least by the similarity between his name and that of the prospective Kebs boss?

Public officials

Of course this question should be asked of all the ministers and other public officials concerning the appointments they make and the tenders they award.

Indeed, this is the spirit of Chapter Six in the Constitution focusing on leadership and integrity, and any public official who does not measure up to this standard of moral probity should be compelled to seek employment elsewhere. But of course, as a friend likes to remind me, “this is Kenya”!

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

Tuesday, October 12, 2010

It’s a mistake to ignore mental illness

Sunday Nation 10 October 2010

Today is World Mental Health Day. With the possible scrapping of Moi Day as a public holiday, it is to be hoped that Kenyans will today join the global community in marking a day dedicated to reducing suffering due to illnesses of the mind.

This year’s theme is: “Mental health and chronic physical illnesses: The need for continued and integrated care”. The focus of this year’s World Mental Health Day is on the interplay between mental health and chronic illnesses such as diabetes, cancer, heart disease, respiratory diseases, and obesity.

Globally, the burden of mental illness is well understood to be higher than that of the more “glamorous” diseases like HIV/Aids, tuberculosis and malaria.

However, due to the immediate and more visible morbidity and mortality of infectious diseases, lots of resources are being spent on them, often neglecting chronic illnesses that have a bigger impact on quality of life and productivity.

For instance, in 2003, it was estimated that mental and neurological disorders alone contributed up to 13 per cent of Disability-Adjusted Life-Years (DALYs), and this was projected to rise over 15 per cent by 2020.

Depression alone accounts for a huge burden of disease, greater than HIV/Aids, TB and malaria combined.

In Kenya, recent research has shown that up to half of patients who visit our public hospitals suffer from some degree of depression.

The violent nature of our political and social interactions has played a huge role in increasing the unrecognised burden of mental illness, and previous studies on survivors of Mau Mau concentration camps, ethnic violence in the Rift Valley and sexual and gender-based violence have demonstrated very high rates of trauma-related mental disorders.

The World Health Organisation estimates that four chronic diseases – cardiovascular, diabetes, cancer and respiratory illness – are responsible for 60 per cent of the world’s deaths, with over 80 per cent of these deaths happening in the poorest nations in the world, including Kenya.

Untreated mental illness increases the risk of these chronic physical conditions, makes it more difficult to manage them and worsens the outcomes after treatment.

Conversely, most of these chronic conditions increase the risk of many mental illnesses, including depression, anxiety disorders and substance use disorders.

As the world shifts focus from infectious diseases to chronic physical illnesses, there is a risk that mental disorders will continue being ignored as governments prioritise and rationalise their health budgets.

This will be a huge mistake. Instead of seeking to reinvent the wheel, we can learn from the experience of the HIV/Aids pandemic.

Initial efforts at control of this infection focused on scaring people about the consequences of getting HIV and Aids, and most campaigns carried pictures of emaciated individuals said to be dying of Aids.

This evolved to an emphasis on anti-retroviral treatment and other approaches aimed at reducing suffering among those infected with HIV.

It is only with the later involvement of mental health specialists that the huge burden of mental illnesses among many people living with HIV/Aids is being recognised. Today, many funding agencies expect to see a mental health component in every HIV/Aids proposal if it is to be successful.

It is our hope that mental health services will be integrated into any chronic disease management programmes that our government develops.

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

Monday, October 4, 2010

Renditions: It’s time for due process

Sunday Nation 03 October 2010

It is very possible that the coterie of young men who have been recently arrested and sent to Kampala on terrorism charges are part of a conspiracy to spread terror in Kenya and the wider East African region.

It is, indeed, not beyond the realm of possibility that they were intimately involved in planning and execution of the suicide attacks on football fans in Kampala on the night of the World Cup final match in July.

Both the Kenyan and the Ugandan governments have assured all and sundry that there is reasonable suspicion that this is the case, and that the young men will receive fair trials in Kampala that meet the highest standards of justice.

However, we must remember that in the same vein, it is quite likely that the governments are either not telling the truth or honestly mistaken, and that the young men may be completely innocent of the crimes they are charged with.

It is also possible that they are being used as scapegoats, as visible demonstrations that justice comes swiftly to suspected terrorists in our region.

Because of this uncertainty on the true facts of the matter, we all acknowledge that some sort of arbitration is necessary to reveal who the real culprits were.

The government must have an opportunity to present its allegations, and the suspects must be given an opportunity to present a defence in open court.
In civilised societies, it is recognised that nobody holds a monopoly on truth.

For this reason, every suspected criminal is subjected to a judicial process that presumes them innocent until proved guilty under the law.
The said law is only administered with the consent of the governed, either directly or through their elected representatives.

Anything short of this so-called due process is considered an affront to the laws of the land and to the rules of natural justice. It is in this context that all Kenyans of goodwill must judge the recent renditions of their citizens to face “justice” in a far-away land without application of due process.

It must be appreciated that in all organised societies, laws are made not for the upright citizens of the land, but for those that would destroy social order if allowed to do so.

Laws are made for the lowest individuals in our societies – the misfits and miscreants who prey on fellow citizens and cause them untold harm and suffering.

We cannot, therefore, ignore these same laws and send our citizens across our borders to face an alien justice system just because their alleged crimes are particularly reprehensible.

The government is evidently relinquishing the much-vaunted “sovereignty” in this matter, a concept that is only polished and displayed whenever our darker natures are pointed out by our erstwhile “development partners”.

The true sovereign under our recently promulgated Constitution is the citizen, and not the government.

In order to begin checking the excesses of the state, the sovereign must now begin to exert his authority and bring our political leadership to account.

It is time we started questioning these renditions for, if we do not, some day in the future we shall repeat the immortal words of Pastor Martin Niemoller, to paraphrase, “First they came for the Muslims . . .”