Sunday, January 29, 2012

Where, for God’s sake, is our moral compass?

Sunday Nation 29 January 2012

This week, let us try and resolve the dilemma presented by the following case.

One day, a businessman is called to the office early in the morning, and finds critical parts of the building burnt to the ground. The security guards have all been killed, and several female employees have been sexually assaulted and left for the dead. The businessman is devastated, and calls in the police for investigations.

A while later, the police inform the businessman that while investigations are still on-going, his exemplary employee, an accountant with an impeccable record, has been implicated by several witnesses. Despite his reservations, the man tells the police to ensure that no stone is left unturned in investigating the incident.

At the end of investigations, the police inform him that they have sufficient evidence to recommend prosecution of the accountant and his accomplices for the heinous crimes at the business premises. They clarify to him that this does not mean that the accountant is guilty of any crime, and that this determination can only be made by a competent court of law.

They arrest the accountant and hand him over to the prosecutor, together with all the files containing the results of their investigations. The prosecutor studies the case files and agrees that there is sufficient evidence to charge the accountant with murder, arson, sexual assault, violent robbery and related crimes. He goes ahead and files the case in court.

Seeking injunction

However, before a judge is allocated to hear the case, the accountant’s lawyer goes to another court seeking an injunction against the prosecution. He argues, as we often do in Kenya, that his client’s prosecution will result in his loss of income and prestige in society, and will prevent him from getting the promotion that he has been waiting for at work.

The accountant remains a free man while all this is going on, and continues showing up at the office while the owner organises to renovate the destroyed sections of his building and hire replacement staff. The accountant’s friends approach the employer and implore him not to take any action against the accountant since he is still not guilty until a court of law proclaims otherwise.

Here is the question: If you were the business owner, what would you do?

Would you wait until the case against the accountant’s prosecution is heard and determined before you make a decision? And what would that decision be?

Alternatively, would you wait until he is charged substantively with the crime before you make a decision? Again, what would that decision be?

Finally, would you wait until he is convicted before you make up your mind on what to do with him? In your thinking process, would one of your options include hiding him in your premises should the court rule against him in any of the cases?

In simple terms, at what point would you ask him to leave and never come back?

These, in my view, are the questions Kenyans must answer about the senior government officials charged with crimes against humanity at The Hague. Everybody knows what the law says about ethics and integrity, but the answers to these questions will only be found in our personal and collective moral codes.

Spending time scouring the statutes to find any and all exculpatory provisions is very telling indeed.

Dr Lukoye Atwoli is secretary, Kenya Psychiatric Association and lecturer, Moi University School of Medicine.

Monday, January 23, 2012

General Election after the next may be in 2018

Sunday Nation 22 January 2012

Before the High Court ruling on the election date was made, all Kenyans were clear in their minds about when they thought the elections should be held. A school of thought held that the August date mentioned in the Constitution was sacrosanct, and there was no other sane interpretation on the matter.

Others, including some lawyers who had participated in writing the various drafts of the Constitution, held that the first elections were supposed to be held in December of this year. Many Members of Parliament were totally against the August date, and would have been happy with a date some time in mid-2013 if that were possible.

After the ruling, however, no Kenyan, with the possible exception of the President and Prime Minister, knows with any degree of certainty when our next General Election will be held. All we know is that elections shall be held between 60 days from Monday (if the Principals dissolve their coalition) and March 15, 2013.

Knowing our MPs, it is obvious that they will do all in their power to have elections on the last possible date.
It is, therefore, quite conceivable that our next elections will be held on the ides (March 15) next year. Notwithstanding the Caesarian omens associated with this date, there is one possible consequence that no one has commented upon.

Second elections

Many Kenyans assume that it is obvious that the second elections under this Constitution will be held on Tuesday, August 8, 2017, unless the Constitution is amended to change this. Unfortunately, this is not the case, even though the High Court judges suggested that, as a result of their ruling, the term for the next parliamentarians may have to be shortened.

The relevant constitutional provisions indicate that General Election “shall be held on the second Tuesday of August in every fifth year.” Now if the next General Election is held on any date in 2013, it follows that the fifth year after 2013 would be 2018. It follows, therefore, that the elections after the next would be held on Tuesday, August 14, 2018, effectively lengthening the term of the next Parliament by anything from five to eight months.

Have any of the protagonists thought about this? One should not be surprised if some MPs have thought about it and are secretly hoping that they will be among the chosen few who will enjoy two prolonged terms in Parliament.

It is possible then that, as we continue arguing about when the next elections should be held, we may just be pushing the problem to the next generation of voters.

A curious point in all this debate is the dogged determination with which the minister for Justice is pursuing a Constitutional amendment to fix the General Election date in December. Though the reasons being given for this are temporary, the effects of such a date change would be permanent, fixing all future elections in December.

Does this mean that a future crisis will result in the government of the day seeking another amendment to change the election date?

My advice to the minister is to just leave well alone, and let the Principals decide.

A more useful, non-contentious First Amendment, in my view, should be the one to entrench a Health Services Commission in the Constitution.

Dr Lukoye Atwoli is the secretary, Kenya Psychiatric Association, and lecturer at Moi University’s school of medicine

Monday, January 16, 2012

Caution Needed With the Government Health Plan

Lukoye Atwoli
Sunday Nation 15 January 2012

The government recently announced a new health plan for civil servants encompassing outpatient and inpatient care as well as payments for disability and death. There has been scanty information on the administration of the scheme, but it seems clear that it would be administered largely by the National Hospital Insurance Fund (NHIF).

On the face of it, this deal is good for civil servants, as it offers them something they have needed for many years. The workforce in Kenya remains largely poor and unhealthy, compromising the quality of work in the civil service and creating a vicious cycle that ensures that majority of Kenyans remain mired in poverty with no hope for a respite.

This deal has the potential of alleviating this problem and improving the health of Kenyan workers.
Improved health care will obviously have a huge impact on the economy and should see us getting closer to achieving our national goals and vision.

The problem arises when one attempts to interrogate the implementation of this plan.

NHIF indicated that civil servants would be able to get care at all public and mission facilities and some private hospitals that will be accredited for this purpose. Indeed, workers were advised to nominate three facilities they would be seeking care at under the plan.

After the announcement that the plan was operational from the beginning of the year, some disturbing issues have been noted by concerned civil servants. NHIF has allocated every civil servant to particular health facilities, both public and private.

Under the plan, NHIF has identified some private "providers" to provide care for civil servants.
In an ideal situation, one would have expected NHIF to sign contracts with the individual hospitals to offer care to the covered members, but instead they have contracted what are effectively middlemen to administer the plan in some areas.

Two of the contracted private providers do not have sufficient facilities of their own, and it is clear that they will only serve as middlemen in the process. Some of the "clinics" identified on their websites are actually non-existent, and it is even doubtful if they have enough workers to offer quality health care to members of Kenya's civil service.

There are two major problems with this arrangement.

Firstly, there have been queries raised in the past over NHIF's ability to manage the funds they currently collect for outpatient cover. One wonders what has changed since an audit revealed that a huge proportion of funds collected by NHIF is used for administrative purposes, and not the core business of providing health insurance.

Secondly, the details of the scheme remain hidden, even to the beneficiaries themselves.
Many civil servants currently do not know anything about it except what has been covered in the media.
Is this the way to implement a medical scheme? Where are the individual contracts for the civil servants, containing the extent and limits of their cover?

For instance, where will they be treated when they get sick away from their stations?
In my view, services at our public facilities need to be improved to enable all public servants to have access to care anywhere in the country.

NHIF should then have no problems providing cover for these individuals, and no public servant should ever have to seek care in a private facility.

Dr Lukoye Atwoli s secretary, Kenya Psychiatric Association and lecturer at Moi University's school of medicine.

Tuesday, January 10, 2012

Health care as a campaign issue this year

Sunday Nation 08 January 2012

In typical Kenyan fashion, this late into the election season, no political party or presidential candidate has come out with a coherent governance strategy for the next government should they win political power. In an ideal situation, political parties and candidates would by this time have clear positions on key areas of the economy, including employment, education, taxation, infrastructure, security and health. Elections would be won or lost on policy issues, rather than the language spoken in a candidate’s home.

Our Constitution has attempted to cure this malady that afflicts our entire body politic, but because the players remain largely unchanged, key provisions risk being ignored or violated outright. As long as the citizen remains quiet and plays along with the political games of musical chairs, little is set to change.

By this time in the campaign, all candidates should have in place teams that will handle every aspect of their campaigns. They should have experts directing key campaign policy areas, with the expectation that should they win, the experts would take on the roles of Cabinet secretaries and other key policy positions in the new government.

Voters will then have adequate time to scrutinise the candidates, their potential Cabinet secretaries, and their policies in different areas of national life. These teams should in fact be the determining factor as far as the fate of the candidate is concerned.

Since no candidate has as yet come up with a health blueprint for Kenya, today I will take the liberty of suggesting some campaign issues in this area.

It is no secret that our health care system is in crisis. Despite attempts at reform over the past 20 years or so, inadequate funding and lack of political will have conspired to ensure progress is painfully slow and hard fought. A dramatic demonstration of this crisis is the fact that the portion of the budget allocated to the health sector has been shrinking progressively in recent years, and currently hovers at around 5 per cent of the national budget.

A health campaign platform should focus on making the following commitments.

Firstly, the entrenchment of a Health Service Commission in the Constitution is necessary to have a more orderly management of the human resources for health. A possible constitutional amendment Bill has already been drafted, and all the candidate needs to do is pick this and run with it in order to gain the support of Kenyans who care about their health.

Secondly, candidates must commit to increase government health expenditure to at least 15 per cent of the national expenditure to finance the necessary reforms in the sector. This was in fact agreed upon by our government years ago in Abuja, but has never been implemented.

Thirdly, they must commit to establish and properly equip and staff 47 county referral hospitals across the country, to more effectively offer services to all Kenyans in an equitable fashion as demanded by our Constitution. These hospitals will be the benchmarks against which facilities higher up or farther down the referral chain will be measured in terms of funding, staffing and equipment.

These commitments have the potential to positively change the lives of all Kenyans. Are our politicians willing to discard old tribal habits and take on issue-based politics this year? Only time will tell.

Dr Lukoye Atwoli is secretary, Kenya Psychiatric Association and lecturer at Moi University’s school of medicine

Wednesday, January 4, 2012

New Year Provides Opportunity for Real Change

Lukoye Atwoli
Sunday Nation 01 January 2012

Hopefully Kenyans have enjoyed their holidays and are now looking forward to a successful new year. Having ended the past year on an uncertain note, one can only hope that 2012 will be a year of answers for our country. However, we start the new year with a couple of heavy questions weighing on our collective minds.

The first question regards the fate of the Kenyans facing cases at the International Criminal Court (ICC). Will anyone be found to have a case to answer? And if this happens, will it spell the end of the era for ethno-political impunity? Obviously, we have invested a lot of emotional energy in the ICC process, and it actually seems as though everything has come to a standstill until the cases are determined.

The result is that expectations are very high that the ruling on these cases will help shape the behaviour of politicians and their supporters during campaigns. While there is no telling how the ICC ruling will go, one can predict with relative certainty that its effect on our political behaviour will be minimal.

Despite claims that Kenyans have changed as a result of a string of political tragedies since independence, there is as yet no objective evidence to bear this out. We still remain tribal in our voting patterns, and worse, we treat elections like a war in which our opponents become mortal enemies, fit to be hanged, drawn and quartered.

Political maturity

This mindset will have to change if we are to attain political maturity in this generation.
The second question we shall grapple with this year is whether we shall have elections in August, December, or at all! As we await the court ruling on this matter, the controversy surrounding the election date serves to remind us never to take anything for granted, including matters about which we think the law is categorical.

As far as the elections date is concerned, we know that politicians are simply angling for an extended period of earnings, knowing as they do that most of them will not be returned to leadership at the next general election. Further, those that will be returned will probably earn significantly less than current parliamentarians, if we are to believe the noises coming from the Salaries and Remuneration Commission.

In the midst of all this pessimism and uncertainty, there is still reason to hope that 2012 will be the year for Kenyans to triumph. This year, we have the opportunity to finally banish the reign of kleptomaniac sociopaths and establish a just, responsive government in their place. The first steps are evident in our continued trust in the sanctity of our Constitution, and we must be ready to defend it with all our resources.

In my opinion, we were going about re-engineering our society the wrong way until we stumbled upon constitutional reform. Our Constitution provides us with our best opportunity yet to set up institutions that will determine the shape of our country in the years to come. With these institutions in place, we shall not have to exhort people to vote for "development conscious" leaders, or to avoid tribal considerations in making electoral decisions.

No matter who gets elected to positions of leadership, the integrity of the State must remain insulated from the mischief of politicians.

Dr Lukoye Atwoli is the secretary, Kenya Psychiatric Association, and lecturer at Moi University's School of Medicine.


Happy new year, dear readers. Due to vacation and travel, we were unable to post any stories between Christmas and the New Year.
Hopefully we have our reading gear on, given that this year promises to provide a lot more fodder for pundits than any in the recent past.
To make up for our transgressions, we are posting the two Sunday Nation articles that appeared on Christmas Day and New Year's Day, and we welcome comments and suggestions of material we should cover this year.
Let's get on with it!

We Need More Vigilance to Have Our Way in 2012

Lukoye Atwoli
 Sunday Nation 25 December 2011

At the beginning of this year, I shared in this column some of my hopes and wishes for Kenya. To illustrate just how much we remain in the same place despite the illusion of progress, let us review the extent to which these wishes were actualised in 2011.

The first wish was that the International Criminal Court (ICC) would finally make a decision on the culpability of the so-called Ocampo Six. As we enter the fifth year since the last General Election and the ensuing madness, we are still in the dark about the strength of the ICC prosecutor's case against these Kenyans. A ruling is set to be made early next month, and one hopes it will help to bring closure to this matter as we face an even more complex General Election.

The coming election is fraught with many uncertainties, with the electoral commission chairman vacillating between the possibility of an August date and a December date, while politicians are angling for an even later date some time in 2013. The High Court is expected to rule on this issue next month, and we can only hope that the ruling will conform to the letter and spirit of the Constitution and will not bend to the whims of our political class.

The second wish concerned the operationalisation of the Constitution through legislative action. Although Parliament literally rushed to beat constitutional deadlines mid this year, a lot still remains to be done.

Little more seriously 

Some laws passed in the rush were later discovered to have errors that would have been corrected had Parliament taken its job a little more seriously.

The third concern raised was that the hullaballoo about electoral boundaries had gone on for too long, and it was hoped that the matter would be resolved within the first few months of this year. Sadly, the Independent Electoral and Boundaries Commission (IEBC) has only recently been constituted, and the chairman has promised a report on new boundaries early next year. Given that it will be an election year, it is obvious that politicians will be at it again, fighting for turf as if they will hold their political posts all their lives.

Of all the wishes I had at the beginning of the year, only the fourth and final one was achieved. The government did not make any moves to implement the idea emanating from a section of Parliament that Kenya withdraws from the Rome Treaty and disengages from the ICC process.

However, in the course of the year, after a Kenyan court issued an arrest warrant for the President of Sudan on behalf of the ICC, the government went into a frenzy, accusing the courts of ignoring geo-political realities in their work. This probably played a role in the decision by the ICC to refer Kenya and some other African states to the United Nations Security Council and the Assembly of State Parties for possible sanctions.

In summary, despite some gains accruing from the enactment of a new Constitution, for many of our politicians, it is still business as usual. Unless we resolve to keep our leaders under an intense spotlight, all we have gained over the years will be lost to a political class that is completely out of touch with the strivings of the man on the street.

Dr Lukoye Atwoli is secretary, Kenya Psychiatric Association, and lecturer, Moi University School of Medicine.