National Discourse in 2012 Must Transcend ICC

In the past few weeks, the national imagination has been completely consumed by the ICC and the confirmation of charges against four Kenyans. What has happened since that confirmation is cause for national concern.

Two of the suspects in particular, William Ruto and Uhuru Kenyatta, have held a number of “prayer rallies”, well attended by a cross-section of their supporters. It does not go unnoticed that these prayer rallies have been held largely in the perceived strongholds of the two in question. It is an insult to the intelligence of Kenyans to suggest that prayer is the primary motivation for these rallies. Characterized largely by political innuendo and the provocation of ethnic sentiment, what is of greatest concern is the effect these rallies are having on inter-relations between Kenyans.

With the anguish of the PEV still vivid in the minds of many, it is dangerous, if not outright irresponsible for people who claim to be leaders to engage in actions clearly calculated to excite the very ethnic sentiments that were partly responsible for the PEV in 2008. What message does this send to the victims of the violence and their families? How many prayers were said for the victims of the PEV at these rallies? Ridiculously, a significant proportion of media coverage around these events seems to portray the suspects as the victims, a chorus similar to that of a retinue of loyalists in tow! Is this some kind of strange post-ICC euphoria?

To be clear, I do not presume to adjudge the guilt or innocence of any of the four; that is not my place! I do, however, find the callous trivialization of the plight of the victims, and this kind of self-serving political opportunism to be not only in poor taste, but also capable of setting the country on the path to ethnic balkanization.
While I have consistently maintained that the fact that ANY Kenyan is facing such serious charges at the ICC is a blemish on our collective national character, I cannot help but be dismayed at actions that could very well lead the country back to where we were in early 2008. These are the actions of people who, purporting to represent their respective ethnic communities, seek power for the purposes of entrenching their own sycophantic political elite, rather than serving the communities they claim to represent, or Kenyans at large. Is whipping up ethnic sentiment the only way to remain relevant?

To be fair, ethnicity cannot be blamed on the political class alone. It is deeply entrenched in each and every one of us, even those who might think they have risen above it. What is also clear is that we cannot continue to operate in this manner. To continue to make national and elective decisions purely on the basis of ethnicity is surely a recipe for disaster, capable of casting us over the proverbial precipice that we came so close to in 2007/8.

It has never really struck me just how deep ethnic bigotry runs in our society, until recently. Naively, I have for some time assumed that my generation (30 & 40-somethings) would be perfectly poised to slay the dragon of ethnicity once and for all. A string of recent experiences indicate that the opposite may, in fact, be more accurate! Predicated on the assumption that this generation is fairly well educated and cosmopolitan, my thinking was that this demographic would not subscribe to the ethnic proclivities of generations gone before. Sadly, I was wrong. Over the last few weeks, I have heard some of the most potent ethnic vitriol coming from the lips of my own contemporaries! Quite a shock to the system!

At this critical juncture in our nation’s history, we cannot allow the sum total our national discourse to be reduced to the cause of a few individuals facing charges at the ICC, whether presidential aspirants or not. Forty million Kenyans are far more important than ANY individuals! Furthermore, we have many far more pressing national priorities to attend to. We have a constitution to implement, in the spirit in which it was intended; a host of legislation, to breathe life into the new constitution; preparation for upcoming elections, and establishing value-based criteria upon which to make elective decisions; and to establish a national identity, that will help us break free of our ethnic shackles.

Most importantly, we need to appreciate that our beloved country is at a crossroads. Therefore, the choices we make RIGHT NOW, will to a great extent determine the direction we as a country will take. If we accept to make those choices based on ethnicity and demagoguery, we will have only ourselves to blame for the resultant calamity.

Urgent Need to Rationalize Public Service Salaries

Finally, some sanity! It came as music to my ears to hear recently that MPs are likely to face a pay cut following the next election. MPs salaries have long been a favourite topic of debate, in the national media and by wananchi across the country. While few would contest the fact that salaries and allowances for Kenyan legislators are grossly excessive, the more pertinent issue revolves around the salaries of public servants at large, particularly those at senior levels.

Firstly, let’s consider some facts: as of 2010, Kenyan MPs earned a monthly base salary of roughly Kshs. 851,000 ($126,000) making them among the highest paid MPs in the world! Secondly, if the Constitution of Kenya (Amendment) Bill 2011 is passed as is, it will not be possible to know the exact number of MPs following an election due to the one-third rule on gender representation. Coupled with the fact that the size of Parliament is increasing significantly anyway, the burden of salaries & emoluments for an unknown number of legislators at the current level would be an unacceptable burden on the taxpayer.

Turning to the public service, the average annual pay in 2010 was Kshs. 394,131 compared to private sector employees at Kshs. 393,760 (Economic Survey 2011). The public sector wage bill has increased at an annual average of 36% over the last 5 years. The bulk of this “growth” is attributed to the hefty salaries of senior public servants which have risen disproportionately in comparison to those in the lower and middle echelons of the service. As a result, Kenya now has the dubious distinction of being one of the few countries in the world where senior civil servants earn more than their private sector counterparts! I, for one, have never come across any economic or management paradigms that justify these kinds of disparities.

Let’s look at it another way: according to the IMF, the top to minimum ratio in Kenya is 118:1. This means that top officials earn an incredible 118 times more than the lowest earners! The disparity is further highlighted by a regional comparison, which reveals the top to minimum ratio in Uganda as 25:1; Tanzania as 20:1; and Botswana as 30:1.

Sadly, we have created a situation that is simply not sustainable and encourages the pursuit of public office for purely financial and selfish gain. Why reward the self-seeking and avaricious gravitation towards public office? The very notion of ‘public service’ is rendered superfluous as professionals and the politically connected jostle for what are in many cases, the most lucrative jobs in the Kenyan market. This raises some questions: Is the Treasury capable of sustaining these levels of salaries for senior public servants? Or more existentially, should public office be the place to amass unimaginable wealth? This, in an environment where a vast majority of the population lives on less than a dollar a day, and our economy is suffering possibly the worst slump in its history!

We need to ask ourselves whether as a country we can sustain this kind of legalized looting of public coffers. This wanton abuse of public trust when bestowed with the privilege of serving in public office is symptomatic of a much greater problem. While it is encouraging that the public sector is growing, if that “growth” is predominantly and disproportionately manifested in the highest ranks, it is in fact false growth and counter-productive to development. It serves no useful purpose other than to further entrench the very corruption that we claim to be trying to address.

The time has come to reinject the notion of service in public service: service to the people and Republic of Kenya. There is a need to rationalize the salaries of upper and lower cadres of public servants. The eagerly awaited Salaries and Remuneration Commission may be well advised to embark upon this process expeditiously, not only so as to save taxpayers their hard earned money, but also so as to preserve a sense of integrity in public service. There may even be an argument for tying the wages of the lowest paid civil servants to the highest paid civil servants, such that any increase at the higher levels in the service would necessarily require a corresponding increase at the lower level.

While the new constitutional dispensation ushers in tremendous promise, it also brings with it a hefty burden in the form of salaries for new public officers. To continue on the current trajectory, given the prevailing economic situation would be sheer lunacy. One can only hope that the Salaries and Remuneration Commission will be able to restore sanity to the salaries of public servants.

(Also appeared in Nation newspaper: http://www.nation.co.ke/oped/Opinion/-/440808/1281562/-/item/0/-/knq50m/-/index.html)

Tom Mboya Responds to Acumen Fund’s Lesson #9 – There is no currency like trust, and there are no shortcuts to earning it

The notion of trust is relative. Relative in that it means different things to different people, and there is no telling what it will take to earn the trust of another. To poor and marginalized communities, trust can be something of a foreign concept: a notion rarely experienced in life, a luxury of those who are blessed with good fortune. Consider an environment where safety and security are not guaranteed, where kinship is based solely on a shared set of circumstances, where disillusionment and a feeling of being disenfranchised are the order of the day. Circumstances such as these decrease the value of human life, and are far from a conducive atmosphere for fostering trust.

Sadly, there is no precise formula to earning trust. Yes, it takes time, but time alone does not guarantee trust! There is no manual, setting out “10 Steps To Earning Trust”, and if there is, don’t believe a word of it! Trust is relative: easily given by some, jealously guarded by others. So while I may not be able to articulate how to earn trust, I have a fairly good idea where to begin: simply listen!

Listen, as one narrates the challenges they face in life, their deepest fears, or their greatest aspirations. Really listen: not as one might to a stranger on a bus or train, knowing you are unlikely to meet again; but as you would to a dear friend, catching up after being separated for years. Listening dignifies the person telling their story, and validates their sentiments.

I am fortunate to work within an organization that demands that I work with underprivileged young people, whom I would not ordinarily have occasion to meet. This has been one of the most profound learning experiences of my life. Coming from a middle class background, one would be forgiven for assuming that I would have little in common with young people who have grown up in informal settlements. Nothing could be further from the truth. Though in the beginning interactions can be awkward, tense, and even uncomfortable, I have found that the act of going back time after time – numerous interactions around various activities has taught us that in fact, we’re not that different. Over time, we develop understanding: an appreciation for the circumstances of another’s life, a sense of why people are the way they are or do the things they do. That understanding eventually breeds trust. I can’t say for certain whether all the young people I have encountered have come to trust me. What I can say with conviction is that listening has paved the way to trust. With every passing day, and every encounter, a greater level of understanding is achieved, a milestone on the road to trust, perhaps.

The interesting thing about trust is that it may not be something we consciously and actively seek out. It is not a goal or priority that we set for ourselves as we begin each day. It is, however, something which if we are to be really honest, we are engaged in a constant struggle to achieve; never really knowing if we have fully earned it, or when. The importance of trust in any relationship, transaction, or interaction cannot be overstated: establishing trust, regardless of how time-consuming or onerous a task it might prove to be, is the most worthwhile investment one can possible make. Simply put, without trust, there is nothing.

The Irony of Subverting the Constitution through Legislation

The initial round of deadlines for legislation to implement the new constitution has now passed. While the first year under a new constitutional dispensation presented numerous challenges, the year ahead is fraught with even more formidable obstacles. With more legislation required to implement the new Constitution in the coming year, Parliament is certain to be distracted by succession and re-election politics! This will have a detrimental effect on the implementation of the Constitution.

Already, concerns have been raised about the quality of the flurry of legislation passed just prior to the August 27th deadline. Parliament passed a number of pieces of legislation with little or no scrutiny. The effects of this are being laid bare. The Ethics and Anti-Corruption Commission Act, for example, is a pale shadow of the Bill as it was when presented to Parliament, whether by design or lack of scrutiny. The emasculation of this Act has led the Minister for Justice, Mutula Kilonzo, to call for an amendment to the Act to reinstate the provisions that were deleted by Parliament at the 3rd Reading. Such legislative action is retrogressive, in that it creates a situation where the spirit of the new Constitution is being subverted through legislation.

Matters of process further perpetuate this situation: illustrated by the inordinate delay witnessed at the publication stage of the IEBC Act, or the numerous reported errors made at the Government Printer. These are emblematic of a concerted effort to influence the content of legislation to suit selfish or partisan interests. How can this kind of wanton manipulation of legislation be prevented?

As the Constitution guarantees accountability and transparency in public affairs, one way to ensure the integrity of legislation is through continual public participation: prior to the legislative process AND flowing through to publication.

While many Parliaments, including Kenya, publish parliamentary information on their websites, much of this information is voluminous and not in a format that is of use to the public or those following parliamentary proceedings. Furthermore, though draft Bills are published online, changes are made on a regular basis, making it impossible to monitor these alterations as they are made. Thus, the public are forced to rely on media reporting of legislative processes, which often favour theatrics and political intrigue over substantive information.

In this digital age, it is possible to facilitate access (for purposes of scrutiny) to legislation on an interactive online platform. Stakeholders and members of the public would thus be able to monitor the progress of legislation at each stage and offer input. Parliamentary Information Systems, as they are known, are information management tools that greatly improve the quality of work & service by supporting MPs and making Parliaments & parliamentary information more accessible to citizens thus improving participation and fostering transparency & accountability. It would be prudent to take advantage of these technological advances to improve the legislative process, provide for public participation, and reduce opportunities for mischief in the development of legislation.

Not only would such tools reduce bureaucracy within the institution of Parliament, but the information would be stored and managed in a format that is usable by stakeholders, secure, timely, and providing an often unavailable means for communication between electors and the elected on issues of mutual concern. This information can be effectively used for holding MPs accountable (by monitoring legislation, analyzing debates, and producing verbatim House records). With the establishment of county assemblies approaching, it would be prudent to introduce these kinds of information management systems from the onset, and avoid devolving laborious, bureaucratic and backward systems. It would even be possible to network assemblies to each other.

Though Parliamentary Information Systems may sound futuristic, they are in fact already in use in a number of countries. Closer to home, South Africa is currently testing just such a system, while other systems are being deployed in Uganda, Zambia, Seychelles and Mauritius.
Objectively speaking, the Kenya National Assembly as an institution (politics & politicians aside), has in recent years blazed the trail on the African continent in respect of how progressive it is: characterized by comprehensive and well-developed standing orders. A knowledgeable, dedicated and committed complement of parliamentary staff is a significant contributory factor. However, we cannot afford to rest on the laurels of a new Constitution. To safeguard the integrity of our legislation, we must seek to improve on the progress we have made thus far, bearing in mind the changes to the institution of Parliament contemplated by the Constitution, as well as an increasingly enlightened population, eager to realize their rights under the Constitution and to ensure that legislation is developed with their interests at heart.

The Challenge of Elections During Transition

Finally, the Independent Electoral and Boundaries Commission (IEBC) Act has been assented to. Having been passed by Parliament more than a month prior, the intrigues and delay of such a critical piece of legislation remain inexplicable, especially given the pressure the country is under to meet the deadlines for the implementation of the Constitution. (At the time of writing this, the IEBC Act was yet to be published despite the fact it was assented to about 2 weeks ago).

The IEBC Act paves the way for the establishment of the new electoral body and is an important first step towards the conduct of elections in 2012. The inordinate delay between passage of the Bill and assent, and an unprecedented 70 amendments, are an indication of the gravity of the content of the Act. Why did this piece of legislation undergo such intense scrutiny, yet most other Bills scarcely draw the attention of most MPs? The answer to that is simple: the IEBC Act determines how the Commissioners for the IEBC, those who will be responsible for the management of the 2012 elections, will be selected. Every politician has an interest in this process! Currently undergoing review is the Elections Bill, which seeks to consolidate election laws and provide for the conduct and procedures of elections. It is safe to say that the Elections Bill is likely to generate as much controversy and scrutiny as the IEBC Bill. Kenyans across the board will need to be vigilant about the content of legislation around elections, if we are to avoid a repeat of the 2007 unrest. It defies conventional wisdom to leave decisions as to the makeup of the IEBC and the legislation governing the conduct of elections solely to those with an interest in these processes, for they will inevitably succumb to the fallibility of human nature and seek to skew these processes in their own favour!

When most people consider the 2007 elections, it is in the context of the violence that engulfed many parts of the country. The level of electoral malpractice witnessed in 2007 is usually overshadowed by focus on the violence that ensued. Judge Johann Kriegler, then Chair of the Independent Review Commission (IREC) best summed it up when he surmised that “The conduct of the 2007 elections was so materially defective that it is impossible – for IREC or anyone else – to establish true or reliable results for the presidential and parliamentary elections”. That the conduct of the 2007 elections was utterly flawed is further illustrated by the number of successful election petitions that have been filed in Court. Of 17 subsequent by-elections, only 3 have resulted in the retention of the seat by the incumbent!

It is imperative that the consequent legislation under consideration takes into account the Kriegler Commission recommendations if Kenya is to rid herself of the rot that is electoral malpractice. The vigilance and participation of the public, as witnessed in the process of the appointment of judicial officers, will be critical.

Uncertainty and anxiety remain over the date of the 2012 election. Though Art 101(1) of the Constitution clearly stipulates that “A general election of members of Parliament shall be held on the second Tuesday in August in every fifth year”; and article 136(2)(a) stipulates that Presidential elections shall be held “…on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year”, some quarters (particularly those occupying political office) claim that the Transitional and Consequential Provisions in the Sixth Schedule of the Constitution preserve the life of this Parliament until December 2012 or thereabouts. In fact, those provisions only preserve the life of the National Assembly “…for its unexpired term”; and in the case of the Executive, “…until the first general elections held under this Constitution”. Given the varied interpretations of these provisions, it might be prudent to seek the interpretation and clarification of the Supreme Court at the earliest possible opportunity.

The uncertainty of the date of the next election has the potential to generate a crisis, particularly during this period of transition. Concern over this issue has been raised by the Chair of the IIEC, the Chair of the CIC, and EU envoys. In this new era of transparency, the date of an election ought to be clear to all well in advance of that election. Considering that as per constitutional provisions, we are little more than a year away from an election; the fact that there is still uncertainty as to the date of that next election is to put it mildly, problematic. We are no longer governed by the old order: whereby the determination of the election date was the preserve of one person. With the benefit of hindsight, and reflecting on the events around the 2007 election, the issue of the election date must be resolved expeditiously so as to forestall a crisis.

The Future of East Africa is in Good Hands

“The future of East Africa is in good hands”: This was my tweet following the opportunity to sit on the selection panel for the Acumen Fund’s East Africa Fellows Program on 21st May, 2011. Leaving the venue, my mind was awash with the hope, positivity and sheer wonder at the innovation that characterized that Saturday’s events. I often think about, and sometimes write about issues around governance, and particularly leadership. For a long time in Kenya, and to a greater extent Africa, we have taken issue with the quality of our leadership. Here, I was surrounded by the stuff that leaders are made from! A room full of mostly young (I confess to a bias for youth) people from across East Africa who were applying their minds and skills to transforming the conditions in their respective countries. These innovations were mindful of the challenges we face as a continent, and as such ranged from renewable energy to agriculture to provision of affordable health services.

In a region sometimes dominated by politics, it was most refreshing to experience leadership redefined: a group of people actively working to effect social change, and in so doing, demonstrating that leadership does not only emanate from the political sphere, but comes in a variety of shades, shapes and sizes. It is unlikely that all the finalists considered themselves leaders, but in my view, they most certainly are. Each and every one, without exception, has made a personal sacrifice to seek solutions to societal challenges. This is the kind of leadership East Africa yearns for: servant leadership acting in the interest of the public, and identifying sustainable solutions to East Africa’s problems.

Looking back, I must have made quite a sight wearing a strange grin on my face throughout the day (despite being confined indoors on a Saturday). From the elevator pitches to the group and individual interviews, I couldn’t help but smile in recognition of the events unfolding before my very eyes. Faced with these challenges, most people would think “…wouldn’t it be nice if someone could sort that out”, and barely give it another moments thought. Not this group! They are those who not only dare to dream, but then act on those dreams as well!

Never before had I come across such an inspirational group of people in one place! The level of commitment on the faces of each of the finalists was plain to see. One thing, however, set this group of finalists apart. Each and every one of them was passionate about their work and social change project. Passion was their driving force, guiding them to seek to become Acumen East Africa Fellows. I feel a distinct privilege to have played some small role in the proceedings that day, inspired and enriched by not only the innovation in content, but also the diversity of ideas and individuals. All those selected as finalists should feel a great sense of pride and accomplishment, as their selection is an achievement in and of itself! With this kind of leadership, the future of East Africa really is in good hands!

Leadership No Longer the Preserve of the Political Elite

In days gone by, in order to ascend to the presidency, the political infrastructure required the formation of political parties with a strong, ethnically-backed individual at the helm. More recently, ethnic voting blocs have been used as bargaining chips to secure a ‘seat at the table’ in this era of coalitions. Prior to 2007, ODM assembled the Pentagon, a group of politicians perceived to be leaders within their respective ethnic groups, capable of delivering their voting bloc to the cause of their joint candidate. This was a largely “successful” formula, if success is measured by proximity to the presidency. A similar group now appears to be in formation, this time on the PNU side of the coalition: the G7 follows a similar model to the Pentagon of ODM. These groupings, who stand for little more than the individuals represented therein, demonstrate the extent to which the political class as a whole is bereft of imagination, direction, or vision for this country. No surprise, then, that all these permutations require the blind following of the ethnic group to achieve their selfish ends, rather than promoting any policy or ideology!

If we are ever to overcome this cycle, Kenyans need to break out of the mold of the old order. ODM and PNU are not the only sources of presidential material; neither are any other political parties for that matter. We need to appreciate the shift we are making from a hybrid system of governance to a pure presidential system. While the old order did not lend itself to independent thought, a pure presidential system supports the making of more than one electoral choice, so as to more accurately indicate policy preferences. For example, one is at liberty to vote for one person/party for the presidency, another person/party for senator, and yet another for MP. This is a radical departure from the past, where many advocated for the calamitous ‘three-piece’ voting system, whereby voters elected the civic and parliamentary candidates who happen to be in the same political party as their preferred presidential candidate. This system, largely responsible for the election of sub-standard leadership, must be avoided at all costs as it allows those with little or nothing to offer the electorate a free ride to political office on the coat-tails of presidential candidates. Given that a pure presidential system guarantees a clear separation of powers, it is no longer necessary to simply settle for the least offensive candidate when making electoral choices.

We need to recognize the opportunities to re-think, re-shape, and re-invent leadership within the context of this new constitutional dispensation; and commensurate with the hopes and aspirations of contemporary Kenyans. If we erase from our memories the absurdity of three-piece voting, we can adapt the provisions of the new constitution and the pure presidential model on which it is based, to better serve our needs. When one considers the advent of independent candidacy, interesting possibilities begin to emerge. It is clear that some permutation of ODM & PNU will contest the Presidency. It is by no means a foregone conclusion that either of the two must succeed. By virtue of the fact that the constitution supports independent candidacy for the presidency (as per Art. 137), some other individual, with broad-based backing that transcends ethnicity could well ascend to the presidency. One cannot help but imagine what an effective check and balance this would present to the vacuous cacophony of squabbles between the likes of ODM and PNU!

There is nothing to prevent an individual of impeccable credentials, standing and vision from presenting himself or herself to the electorate as an independent candidate for the Presidency. Having done away with the impediment requiring a presidential candidate to belong to a political party, this is now a reality! As a country in the throes of constitutional and social transition, nothing would suit this country better than a strong presidency that does not pander to the whims and machinations of the political elite. The constitution provides just such an opportunity. Most importantly, this would present an opportunity to see through the implementation of the constitution under responsible and credible leadership.

The winds of change can be felt already, as evidenced most recently by the nominations to the post of Chief Justice and Deputy Chief Justice. There is almost certainly more to come along the same lines. The effects of the new constitutional dispensation are beginning to reverberate. If the rationale for a new constitution was partly to reform corrupt and non-performing institutions, it is necessary to carry those reforms across the board: from the judiciary, to the legislature, and executive. This is equally important for the institution of the presidency, taking into account the new structure under a purely presidential system. As Kenyans, we would be well-advised to avoid putting old wine into new wine skins!