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Tuesday, April 28, 2015

Why Kenya Is Not At War



Kenya is at war. This mantra is repeated over and over ad infinitum by government officials and pro-establishment types. At a time of military conflict, we are told, peacetime rules and conventions do not apply and we should be prepared to give up some of the rights and freedoms guaranteed by the constitution. But really, are we at war?

“We are in a war against terrorists in and outside our country,” declared President Uhuru Kenyatta in December. He was, of course, referring to the confrontation with the extremist and murderous terror group, Al Shabaab, which has killed hundreds of Kenyans in the last 4 years. Most of these deaths have come in the wake of the October 2011 invasion of Somalia, whose goal was initially proclaimed to be the pursuit of kidnappers and to push Al Shabaab away from our borders.

Despite the banner headlines at the time, there was no official declaration of war, either against Somalia or against Al Shabaab. In fact, there has since been no such declaration, which according to the constitution would have required the authorisation of Parliament.

But if Kenya is not exactly a de jure state at war, is it in a de facto state of war? There is no doubt, as the President has noted, that “our country and our people are under attack”. Since 2012, more than 600 people have been killed by the Al Shabaab, who continue to threaten to paint Kenyan cities red with blood.

However, it is far from clear that the country’s response to the terrorists could reasonably be characterized as a military conflict. The troops in Somalia, who neither caught up with the kidnappers nor succeeded in pushing Al Shabaab from our borders, quickly shifted goal posts and declared their objective to be the capture of the Somali port of Kismayo, which was achieved a year later. By then, the troops had been rehatted as part of the African Union Mission in Somalia and were, at least nominally, taking their orders from the Force Commander in Mogadishu and not the Ministry of Defence in Nairobi. Today, with a battalion having been withdrawn to make way for Sierra Leone, under 4000 troops remain in AMISOM.

Although the Kenya Defence Forces are today routinely deployed within Kenya, it is not always or even predominantly fighting against the Al Shabaab. In fact, in many instances, it has been deployed to quell internecine conflict between Kenyan communities. If deploying the KDF is an act of war, then Kenya is as much at war with itself as it is with Al Shabaab.

In truth, the battle against Al Shabaab has been much more a policing than a military action, though it is frequently described, as I have just done, in language from the latter. As a matter of fact, on two occasions –at Westgate where 68 people were slaughtered and most recently in Garissa where at least 148 perished- the deployment of the KDF to do a job the specialized police unit known as Recce Company should have been doing, was cited as a major failure. Reports on other terrorist incidents such as the June 2014 Mpeketoni attacks which left about 70 dead, mainly blamed problems within the police service not the military, from divided command to corruption, for poor responses.

In Somalia too, Kenya is not prosecuting a war against the Al Shabaab in Somalia. AMISOM, where Kenya is one of several principals, is. AMISOM’s objective is not, at least directly, to protect the Kenyan border, but rather to support and protect the government in Mogadishu. Sure AMISOM is mandated to eliminate Al Shabaab. But given the reports of the Kenyan contingent’s involvement in illicit trade that benefits Al Shabaab immensely such as the smuggling of charcoal and sugar, it is debatable whether they are particularly focussed on this objective.

Kenya is at war in the sense Australia or Canada are at war. Both nations have deployed troops abroad to fight as part of a coalition confronting extremists. Both have suffered terror attacks, though nowhere near what Kenya has experienced. Most would immediately see the incongruity of suggesting that Canadians and Australian accept "wartime" restrictions on their liberties (which is not to say such restriction is not attempted). But Kenya, with its much greater familiarity with terrorist attack is an easier target for the argument.

In the 1997 Barry Levinson movie, Wag The Dog, the US administration fabricates a war with Albania to distract the public from a sex scandal on the eve of an presidential election. Similarly, in Kenya today, the talk of war is intended to mask a multitude of sins on the part of the government and security agents. It is thus not unusual for officials to assert “operational security” to avoid public scrutiny. Or to hear that, as one commentator tweeted, “it is incongruous [to] deem it practical that counter-terrorist activities [be] governed by peacetime procedures/rules.”

The idea of a literal war on terrorism, and opposed to the figurative “wars” on corruption and drugs, is meant to generate a climate of fear and foster an unthinking and unquestioning patriotism. It is not only the carpet under which government seeks to sweep its failure to fundamentally reform and fix the country’s security system, but also provides justification for a clampdown on dissent.

Andrew Franklin, a Nairobi-based security analyst, notes: “Kenya is not at war. As archaic as it may sound, wars are declared and fought between states or coalitions of states. This is not mere sophistry since declarations of war justify extraordinary – and temporary – restrictions on all manner of normal domestic activities and curbs on many constitutionally protected freedoms. 

“This is why going to war is considered a big deal and not just a matter of semantics.”

Friday, April 24, 2015

The Leadership Is The Problem. Not Kenyans.

The death of Lee Kuan Yew, architect of Singapore’s rise from a corrupt economic backwater to one of the globe’s most prosperous and clean societies will undoubtedly spark debate across the world on the lessons that can be drawn from his successful efforts to eliminate corruption. Across Africa, he has been lionised and some, particularly Rwandan strongman Paul Kagame, have sought to replicate his autocratic methods with varying degrees of success.

In Kenya, which is consistently ranked as one of the most corrupt nations on earth, many have pined for a benevolent dictator in the mould of Lee Kuan Yew. The argument has been advanced that the country’s myriad security and economic problems cannot be addressed in the context of a free-wheeling liberal democracy. President Uhuru Kenyatta regularly proclaims his administration’s need to be freed from the constraints of constant political competition in order to focus on the imperatives of development and economic growth.

However, this misses the crucial lesson from Singapore. It is true that Lee Kuan Yew brooked little dissent and that his rule was characterised by a clampdown on political freedoms as well as harsh social controls. It is equally true that he ruled for an inordinately long time, turned Singapore into a de facto one party state and that his family, especially his children, have done pretty well for themselves: one son is the current prime minister, another heads the Civil Aviation Authority and his a daughter is the director of the National Neuroscience Institute.

But in this, Singapore is not very different from, Kenya and much of Africa, which have similarly experienced the diminution of civil and political freedoms though these have tended to entrench, not alleviate poverty and the looting of state resources. The crucial difference is not that Singapore was a dictatorship and Kenya wasn’t. It was in the quality of the leadership. Simply put, Lee Kuan Yew walked the talk on corruption. Where he eschewed graft and actively worked to prevent the capture of the state for the benefit of a corrupt elite, successive Kenyan presidents have used the state as a means to enriching themselves, their families and rewarding their cronies.

Compare the records of the two countries’ anti-corruption agencies. Lee Kuan Yew inherited the Corrupt Practices Investigation Bureau from the British and transformed it into a formidable graft-fighting watchdog which has taken scalps among high ranking government officials including cabinet ministers. According to a 2013 study commissioned by the Prime Minister’s office, in the previous five years, the CPIB had on average opened 39 cases involving public officers each year with two-thirds resulting in prosecution or disciplinary proceedings.

By contrast, Kenya’s Ethics and Anti-Corruption Commission has only prosecuted 22 cases in the last three years, a negligible fraction of the nearly 10,000 complaints it received. And it lost most of these, securing only 3 convictions. Further, in the last half century, despite the fact that dozens of investigative commissions have thrown light on hundreds of cases of corruption, not a single cabinet minister has ever been convicted.

Currently, Kenya is prosecuting 13 suspects, including two former Finance Ministers over the Anglo Leasing scam which cost the taxpayers nearly $1 billion in fictitious supply of security related equipment. However, given the government’s past record, few expect that this will result in convictions. A “list of shame” released in 2006 by then Justice and Constitutional Affairs Minister, Martha Karua, had implicated at least 28 senior officials in the Mwai Kibaki and Daniel Arap Moi administrations including then Vice President, Moody Awori and current Deputy President, William Ruto. Further muddying the waters, the EACC and watchdog committees in Parliament today find themselves embroiled in allegations of taking bribes to cover up the involvement of senior administration officials and businessmen in the theft of public resources, including in the Anglo Leasing investigation.

The fact is while the Kenyan elite talks a good game, it has not demonstrated any interest in battling graft. They do not see the raison d’etre of the state as uplifting the lives of ordinary Kenyans but rather as a means of preying on them. Instead of fundamentally reforming the parasitic colonial system, the elite have instead sought to blame the victims, to convince Kenyans that they are the problem, their culture, their stupid and tribal politics, their willingness to pay bribes. In effect, the elite has argued that Kenyans are in fact stealing from themselves, impoverishing themselves and, in turn, scapegoating those in power.

 Lee Kuan Yew’s record against corruption is not a lesson in what authoritarianism can achieve and democracy can’t. If it were, African countries would head the corruption indices. It rather teaches that what matters is a genuine commitment within the leadership to eradicating the vice and to building systems that, to paraphrase the former Singaporean Minister for Home Affairs, Ong Pang Boon, "reduce opportunities for corruption, make its detection easier, deter those susceptible to it and severely punish those who engage in it".

In truth, Kenyans and Africans in general, are no more prone to corruption than are Singaporeans. Their leadership, however, is. And that is the problem.

Friday, April 17, 2015

The House of Graft


“The oppressed are allowed once every few years to decide which particular representatives of the oppressing class are to represent and repress them,” said Karl Marx. The idea that members of parliament are part of the “oppressing class” and represent themselves not their constituents appears to find much support in the conduct of Kenya’s legislators at all levels. Their greed and prioritization of self-enrichment above all else and to the detriment of those they are meant to serve is legendary. Yet Parliament has also served as a forum for exposing and, if not exactly combating corruption, at least curtailing some of its more egregious manifestations.

A 2006 Case Study on the Role of Parliament in the Fight against Corruption: The Case of the Kenyan Parliament by Dr Fred Matiangi, the current Cabinet Secretary for Information, Communication and Technology, traces the roots of corruption in Kenya to the colonial era. “The colonial government rarely understood the traditional African cultural practice of leaders’ entitlement to gifts and favors from their subjects, the measures it took in Kenya … smacked of abuse of power,” he writes. Yet it wasn’t until the sunset of British rule that the Legislative Council, the fore-runner to today’s Parliament, addressed corruption as an issue. In 1956, the Prevention of Corruption Act, was, according Dr Matiangi, “corruption became an issue in legislative affairs (albeit, in a superficial way).”

One would probably be excused for asking why it took half a century for the Council to discover corruption. A possible explanation could be found in the fact that for most of its history, the Council simply served as a rubber stamp for the colonial government. In this, it presaged the subservience of Parliament to the Executive that was to characterize much of independent Kenya’s history and to create room for the theft of national resources.

The period following independence saw two trends that were to exacerbate and entrench corruption in government and in the National Assembly. The recommendations of the 1971 Commission of Inquiry into the Public Service Structure and Remuneration (also referred to as the “Ndegwa Commission” after its chairman, former Head of the Civil Service and later Governor of the Central Bank of Kenya, Duncan Ndegwa) allowed public officials, including MPs, to participate in private business which created a host of conflicts of interest by blurring of the lines between private and public spheres. Secondly, Parliament was progressively stripped of its powers of oversight over government and effectively cowed into silence.

As Dr Matiangi notes: “An incestuous relationship would thus emerge between public service and private interests that would undermine any interest in integrity issues. Studies have shown, for instance, that there is a correlation between wealth and politics in Kenya. Those who play active and influential roles in politics are the well-to-do, or they become well-to-do by virtue of office.”

With their watchdog role compromised, the Parliamentary committee system ground to a halt and public service was transformed primarily into an avenue for personal enrichment and for the looting of public resources. Politics paid lip service to the poor but in reality excluded them and privileged the interests of the wealthy while increasing polarisation and conflict, and driving the honest and meritorious out of public life. MPs who dared to question this corruption of our politics, like George Anyona, Bildad Kaggia and JM Kariuki, were ostracised, detained and even murdered.

Following the return of multi-party politics in 1992, Parliament begun to reassert itself but in a Jekyll and Hide fashion. On the one hand, the National Assembly became an important forum for the exposure of mega-corruption scandals. The two largest scams, Goldenberg and Anglo Leasing, were both brought to public attention by the tabling of documents in the House. In 1993, Paul Muite and Anyang Nyongo blew the lid off the former after they received documents from Central Bank whistleblower, David Munyakei. Anglo Leasing was exposed when opposition MP, Maoka Maore, tabled documents showing that the Offices of the President, the Vice President, the Ministry of Home Affairs, and the Treasury were in the process of illegally procuring passport-issuing equipment, in which the country stood to lose about KSh 70 billion.

Further, in the wake of the Goldenberg revelations, Parliament established an Anti-Corruption Select Committee (or the “Kombo Committee,” as it is commonly referred to, after its Chairman, Musikari Kombo) which was charged with identifying the causes, extent, and impact of corruption in Kenya as well as the key perpetrators and beneficiaries thereof. It was also to recommend sanctions against such individuals and recover the lost public property.

The Kombo Committee represented the first attempt to unearth and document the scale of corruption in the country. Its report showed that more than half of all tax revenue was misappropriated and its now-forgotten List of Shame not only implicated many in the governing elite, but set the trend for corruption-related Parliamentary “naming and shaming.” The current list of the corrupt compiled by the Ethics and Anti-Corruption Commission, whose existence was revealed during President Uhuru Kenyatta’s State of the Nation address to Parliament, follows in the tradition set by the Kombo Committee as did the Anglo Leasing List of Shame unveiled a decade ago by then Justice Minister, Martha Karua.

However, another thing these lists have in common is that they rarely lead to serious prosecutions, let alone convictions. So even as Parliament continued to assert itself, its investigations of corruption generate sensational headlines and embarrassment for government officials, they do not, as a rule, result in punishment. In fact, sometimes Parliament has itself purported to clear suspects such as former Finance Ministers, George Saitoti in Goldenberg and David Mwiraria in Anglo Leasing.

Though much of the initial focus was on corruption in the executive branch which at the time admittedly included many MPs, the conduct of the entire legislature has also been firmly in the spotlight. One of the ways legislature was kept under control was via a deliberate policy of keeping MPs’ pay and benefits low. The President could offer opportunities to supplement this income via ministerial appointments and, by 1989, half the members elected to Parliament occupied ministerial positions, eroding the distinction between the holders of elective office and the administration.

As the Nyayo dictatorship begun to be rolled back, one of the first objectives of the MPs was to take control of their calendar as well as their remuneration. Changes which gave Parliament control of its calendar and budget were pioneered by Peter Oloo Aringo, a former government minister, at the end of the 90s. Ever since, raising salaries has been a great strategy to unite MPs and trump executive opposition. It is also a deeply unpopular strategy with the public who are wont to see MPs as greedy and unprincipled, insensitive to the plight of those whose taxes pay for their extravagance –a situation that is not helped by MPs’ reluctance to themselves pay tax.

Repeated salary hikes have multiplied MPs’ minimum pay by a factor of 10 to just over US$ 10,000. This in a country with a poverty rate of up to 42 percent outraged many in the Kenyan public who saw it as a form of corruption – the abuse of public office for personal gain. By 2013, Kenyan legislators were considered to be by far the best paid in the world relative to per capita GDP.

One reason for MPs constant obsession with their pay is that despite the introduction of devolved funds and county governments, MPs are still expected to contribute to their constituents’ expenses such as school fees and burial expenses. Thus their pay serves also as a resource for bribing voters.

In addition, as Parliament became more assertive, there was greater interest from businesses looking to influence policy or legislation. “No one lobbies a weak legislature, but as legislators’ authority over policies increases, so will attempts to influence them,” wrote Dr Matiangi. This led to the much-publicized “cash for questions” allegations, where MPs were alleged to be induced by cash rewards to ask particular questions in Parliament.

For all the money that Kenya has thrown at the problem of legislative independence, that freedom has not necessarily translated into a more responsible and effective Parliament. If anything, it has proven that one cannot buy integrity.

Perceptions of the MPs personal integrity have worsened. A September 2005 nationwide survey revealed that more than 8 in 10 believed some, most or all MPs were corrupt. Legislators were second only to the police in perceptions about public corruption. A 2008 survey showed that less than half of the population had any meaningful trust in Parliament.

In terms of legislative output, both quantitatively and qualitatively, it is questionable whether higher pay has improved MPs’ work ethic. In 2013, Alphonce Shiundu, outgoing chairman of the Kenya Parliamentary Journalists Association said that the trials of President Uhuru Kenyatta and Deputy President William Ruto at the International Criminal Court, as well as a push to further enhance their pay –in the process ignoring public outrage and swatting aside attempts by the Salaries and Remunerations Commission to revise their terms- dominated the agenda of Parliament. “Their goal was to protect the interests that put them there,” he says. “If they were actually working for the people, their attention would be on different things like the Capital Markets Authority which has not had a chief executive for 18 months.”

The new constitution has gone some way to reducing the opportunities for Parliamentary graft. Dr Matiangi identified three ways in which MPs were vulnerable to corruption. First, as noted above, MPs who became ministers gain access to resources far beyond those of backbenchers, and the enticement to use them for personal and party purposes can be very great. Second, MPs’ control of their own pay as well as the Constituency Development Fund provided greater opportunities for corruption. And finally, Parliament’s core legislative and watchdog functions and its greater role in the national budget-making process, while healthy, also increase the likelihood that individuals and organizations will attempt to influence public policy by providing MPs with private benefits.

The first two have effectively been eliminated. MPs cannot join the Executive unless they first resign (as did Joseph Nkaissery), their pay is now determined by the Salaries and Remuneration Commission and a court has recently ruled CDF unconstitutional. However, as the scandals currently bedevilling several Parliamentary committees demonstrate, there are still opportunities for bent MPs to make a quick buck.

Dr Matiangi proposed “sunshine as the best antiseptic” and suggested opening up, not just plenary sessions, but committee meetings to the press and public. This would indeed be a great start. Laws on public disclosure of contributions and gifts would also help as would better resourcing of Parliamentary reporters to enable them sniff out and chase down graft. In keeping with the “sunshine as antiseptic” theme, Kenyans should also insist on amending the law to make declarations of wealth by public officials available for public inspection.

When it comes to punishing corruption, it is important that MPs are not allowed to hide behind their in-house processes. The scandal engulfing the Parliamentary Accounts Committee, for example, seems to be primarily dealt with by the Powers and Privileges Committee, a case of Parliament investigating itself. Neither the EACC nor the Office of Public Prosecutions nor the Police appear to have taken any interest. As a society, we must insist that MPs are held to the same standard as all other public officers.

More importantly though, it is important that we seek to reset the basis and objectives of our politics. It must become about finding solutions to our common problems rather than personal enrichment at the cost of everyone else. We should not only eliminate the opportunities for graft but also place integrity and the Kenyan people at the heart of public service. This will require that we reflect not just on our failure to reform the colonial history of corruption, but also on the policies and actions of the post-colonial governments that have entrenched the vice in our body politic.