THE PRESIDENT IS EXERCISING HIS CONSTITUTIONAL PREROGATIVE TO VET JSC RECOMMENDATIONS

“You always had the people and now have the government on your side, so that the prospect is as favorable as could be wished. At the same time it must be admitted you have much trouble and difficulty to encounter”. - James Monroe’s writing to Thomas Jefferson on the eve of Jefferson’s inauguration as president.

Struggles over power, appointments, and executive privilege can result in constitutional showdowns the most bizarre, until now, being president Kenyatta’s appointment of a tribunal to investigate members of the JSC based on a report of the National Assembly which, even though gagged by a court order, found JSC to have acted unconstitutionally in removing the Chief Registrar of the Judiciary from office. The JSC, armed with court order against the tribunal then proceeded, interviewed and recommended 25 names to the president for appointment as Judges of the High Court. The President did not immediately appoint the nominees, perhaps because to do so would have been a very public acceptance that JSC had won the inter-institutional battle for power and supremacy.

On 27th June 2014, the President finally acted. He appointed 11 Judges out of the list of 25 that was forwarded to him by the JSC. This mere act, appears to be a climb down by the president, an acquiescence to JSC’s claim to authority to dismiss the Chief Registrar of the Judiciary. The fact remains that the president seems to dislike and distrust not only the JSC as currently constituted but also Judges whom he has had no say in their appointments.

Courts derive strength from their words but their words are no match for what the President has: the votes and in what might turn into yet another constitutional showdown, between the president and the judiciary, the Law Society of Kenya is moving to Court, it says, to challenge the president’s decision as unconstitutional on grounds that the president’s role in the appointment of judges is allegedly “ceremonial and he cannot purport to approve or disapprove names of those recommended for appointment by the JSC”.

            

It appears the president has decided the time has come to draw a line and make it known to the judicial branch that that is what he is doing. Mere assertions of executive authority, without visible action, he must have concluded, would be irremediably corrosive of his presidential prerogative to approve or disapprove recommendations from the JSC.

A noted academic professor Yash Pal Ghai’s has posed the question, in The Standard Newspaper issue of Monday, June 30, 2014, “is the President aware of Kenya’s Constitution under which he was elected and now governs the country?” He further writes, even as he correctly rules out any chance of impeachment, that: “the president has absolutely no discretion. The JSC makes “recommendations and the president appoints”.

The president obviously disagrees. None but him alone has the constitutional prerogative to appoint judges. Article 166 (1b) of the constitution states the president shall appoint Judges, with the exception of the Chief Justice and the Deputy Chief Justice, in accordance with the recommendation of the JSC and Article 166 (2) outlines the criteria to be used for appointment. Much has been made of use of the word shall. My view is that ‘shall’ only applies to the extent that the president when he appoints a judge cannot seek recommendation from any other quarter; say from the first lady or the first mother or the office of the attorney general, but only from the JSC. What would happen for instance when he disapproves of recommendation to appoint a particular nominee on grounds that the nominee, notwithstanding the recommendation, does not meet any of the criteria set out in Article 166 (2). Should the president carry on and appoint the nominee anyway. Does he have the ultimate constitutional right, when exercising executive authority derived from the people to prevent a train wreck.

Indeed during the swearing in of the 11 appointed, the president noted that "It is important to ensure that individuals appointed to advance the course of justice are persons of integrity and adhere to our national values," further adding that the Judiciary plays a major role in creating a suitable business environment by ensuring that commercial disputes are settled expeditiously. Clearly, he has a role to play.

President Kenyatta, probably takes the view, what Theodore Roosevelt called the Jackson-Lincoln theory of the presidency, that occasionally situations arise which call for firm and vigorous action, and that in such situations it is the duty of the president to act upon the theory that he is the steward of the people, and that the proper attitude for him to take is that he is bound to assume that he has the legal right to do whatever the needs of the people demand as he sees them, unless the Constitution or the laws explicitly forbid him to so act.

Indeed Abraham Lincoln decision, for instance, to defy a habeas corpus order issued by Chief Justice Taney during the opening days of the American civil war was based on a particular view of presidential power to defy the courts in situations of extreme crisis, where doing so is necessary to save “all the laws but one”. This act of defiance of the courts by Lincoln created a (nonjudicial) constitutional precedent that clarified constitutional lines and is cited to this day by constitutional theorists with various views of presidential and Judicial power.

Jefferson, just like Kenyatta today, disliked and distrusted the ‘Federalist’ Judiciary he inherited from John Adams. In February 1803, chief justice Marshall issued the opinion of the US Supreme Court in the case of Marbury V Madison, a confrontation between one of the out-going President Adams’ midnight appointees, William Marbury, and the Jefferson Administration. The decision, which held that James Madison (himself a future president) had been wrong to withhold a commission to Marbury, went against the president, but Marshall wisely avoided a showdown while helping lay the foundations for the concept of judicial review.

Constitutional showdowns have the benefit that they clarify constitutional authority. Such clarification help in reducing decision costs for the government and public in the future. The cost, however, is that these showdowns may result in the interruption of governance; the energy of government officials being diverted to the problem of asserting authority.

The difficulties Monroe foresaw Jefferson faced came from Jefferson’s belief in government that was in harmony, accountable, less intrusive and less overbearing than the one Washington and Adams had created. Jefferson, for instance, believed there were too taxes and too many judges. There had even been a rumor that Marshall, who had just been named chief justice, might be appointed president, blocking Jefferson from office. “If the union could be broken, that would do it,” said Madison. Many of his foes had misinterpreted his beliefs in the direction he wanted his country to take as dreaminess and weakness. They would learn, quickly and unmistakably, that they were wrong. The same can be said of president Kenyatta.

BUILDING KENYA REQUIRES THE COMMITMENT, NATIONALISM AND PATRIOTISM OF ALL.

 

Democracy, wrote Donald Kagan in 1991, relies on free, autonomous and self-reliant citizens and extraordinary leadership to flourish, even to survive. These kinds of citizens aren’t born, they don’t come in nature; they can only be taught. These kinds of citizens need to be educated and not just for its sake but so that they know how to be different from what they are in the way that they take to be the best; so that they can commit themselves to fundamentally including others; so that they are better engaged in service of common good.

And so a democracy, if that is the path a people of a nation decide to follow, cannot long flourish if the citizen is not knowledgeable or is only superficially knowledgeable about her place in the society, about her society, and about her rights and role in the society. Critical in molding the educated citizen is instruction in dialogue and commitment to dialogue as a means of building a healthy happy prosperous polity.

Five decades after independence from colonial rule, Kenya is in some and not other respects a rarity in the Eastern Africa region. Its people are freer, more economically empowered and more politically conscious than the citizens of its neighbors.

What is more, side by side the most liberal Constitution yet in her history, March 4 swept into power, the youngest and most ambitious crop of leaders Kenya has ever had since its independence. Although it is too early to tell, early signs indicate, going by the pronouncements it has made and continues to make, that the Kenyatta Administration intend to transform this country into the image of the Constitution, economically, socially and culturally. And as the President has acknowledged on numerous occasions when he has called upon Kenyans to join him in the task ahead, the task of developing the nation is insurmountable if the citizen will not play her role. The citizen cannot play her role unless she is an educated citizen.

Whether the tasks are as simple as keeping one’s environment clean or honesty in food business dealings or obedience to the highway code or participation in community policing or respect for the rights of other culturally different citizens or whether the task is as lively as holding, directly or indirectly, elected representatives, state and public officers accountable, everywhere you go, wherever place you find yourself be it in the Court room or restaurants or matatus or banking halls or supermarkets or in Facebook, it is not uncommon to be left with the feeling that Kenyans are constantly warring against civility, against progress; that Kenyans are not yet fully engaged in the healthy task of building their society together. Instead, the dialogues, if any, are full of accusatory and at times bitter speech against this person or these people or this or that Government all for no good reason. We fail to realize that building a Nation requires the commitment, nationalism and patriotism of all.

To paraphrase Barack Obama ‘we still conform to ancient maps of identities’-the tribe, a predilection that has sapped crucial energies that could have been directed at intensive nation building. Not only that, we sadly have also failed at dialogue with ourselves and amongst ourselves, in some instances because of the toxic atmosphere of ethnicity and in other instances because the citizen is simply not an educated citizen. This perhaps is the biggest stumbling block to realizing the aspirations of the Kenyan Constitution.

It is crucial for the Kenyatta Administration to articulate to the citizens, even as it educates it, in language that is believable and dependable as it is simple and lucid, what being Kenyan means in the light of the new Constitution. That would be a good place to start the dialogue.

February 11 Presidential debate was mediocre and pointless

"They miss the point"
-Raila Odinga, CORD's Presidential candidate.

Just because we watch and/or perhaps follow US politics does not mean that what they do there, we should or must do here.

It is a symptom of mediocrity and even inferiority that we copy paste every foreign way of doing things without first getting the fundamentals right; in this context, first understanding the reason, purpose and objective of a presidential debate. It is after that that we can even attempt to replicate the debate here: Invite the right candidates, ask them the right questions and cause a debate amongst them.

(By the way I call it debate. It wasn't. We don't even copy well)

Let me start with my conclusion. The forthcoming elections and in particular the election of the President will be a single issue election-Tribalism as far as most of us or rather majority of Kenyans are concerned. Any so-called presidential 'debate' that ignores this fact has simply missed the point and is unhelpful.

So we have to stop pretending, as we often do, that we care about issues around fuel affordability, food prices, housing, education quality and costs, availability of healthcare, infrastructure and so on and so forth. We don't. Whether one is college educated or not, rich or poor, people will take sides on the basis of Tribe and vote accordingly.

Tribalism has corroded the political and socioeconomic fabric of the Kenyan society to an extent that it is, in my view, the most important political, economic, social and national security issue. Group polarization along the lines of Tribe is the biggest threat to democracy and by far the biggest threat to nationhood in this Country. No one is born a tribalist. So the study of the origin and consequences of tribalism and how to resolve the issue has got to recognize that it is the product of social influences on individual behavior.

It manifests itself, for example, in speech when you hear a nut case angrily make a crude statement about you because you belong to tribe from which crude generalizations have been formed over time. It also manifests itself in resource allocation in public and private sector. This by the way is the most consequential manifestation of tribalism.
My problem with the presidential debate was in its failure to recognize that fact and deal with it comprehensively, dispositively and definitively.

When Kenya became a sovereign Republic in 1963, it was no doubt the hopes of many that independence from white colonialists would lead towards the collective realization of all things all humans aspire to wherever they may be.  

Fast forward 50 years later. On 11 February 2013, we had our first presidential debate which brought together the eight presidential candidates to debate on issues they would be presented with by the two moderators Julie Gichuru and Linus Kaikai.


This should go on record, it is increasingly certain that the forthcoming elections, as far as the presidency is concerned will be a contest between two Coalitions; the CORD Coalition and the Jubilee Coalition. Of course there are other candidates, but by and large, they are fringe.

Lately the Jubilee Coalition, and this is on record, has raged against opinion polls which are indicating that the CORD's presidential candidate is leading in the race to the presidency. The polls are not stating that the race has been won. Not at all, though there would be nothing wrong with stating so if that is what the science of the polls is revealing as the likely outcome.

However the Jubilee Coalition have rejected the polling as inaccurate. Their first objection to the polling had nothing to do with polling itself. Instead, at Uhuru Park, while launching their campaign team they went after the Directorship of the pollster that had first released election polling trends i.e Infotrack Harris falsely claimed that the directorship of Infotrack Harris was composed of close relatives and friends of the CORD's nominee.

When a second opinion pollster revealed more or less the same trends, the objection changed from stupid attacks on persons to no less admirable attack on the science.Without a shred of shame about it, the Jubilee Coalition have shamefacedly rejected science.

And when the 3rd pollster did not fair any better, the attack on science has continued, but now the important detail of how many people belong to this or that tribe has become a national pastime. Their objections (against these 3 pollsters) are primarily premised on the 'fact' that they 'have the numbers' and thus the pollsters are polling at their opponents whim. Indeed recently a political-scientist-for-hire appeared on the national screen with the same message. It was his submission that since Jubilee Presidential candidate and his running mate come from the largest and third largest tribes in the country, the elections were in fact won on 18th December 2012 when the Independent Electoral and Boundaries Commission released the figures on voter registration.

So yesterday, this particular issue came up when the CORD's presidential candidate reprimanded those who peddle such figures. "They miss the Point" he said. "Such peddling of figures present a very dangerous proposition" He continued.

I agree.

Thus the debate was simply put: Irrelevant. Completely irrelevant. What it did was perhaps provide an opportunity for the electorate to tune in to listen to the side they have already opted to vote for.

That is why I think the organizers of yesterday's debate missed the point. Debaters were not strictly restricted to answering questions put to them. Very few of them actually answered the questions they were asked. I reckon even fewer listened to themselves giving the answers they gave.

So my opinion is that the debate should have been a two-hour discussion about tribalism. Of course even though there is the possibility that extensive deliberation on the subject may produce an even extreme polarization, it is the only way I know to acknowledge and start dealing with the problem.


UPDATE: Yesterday but one an opinion poll was released allegedly showing who won the debate.
If you have missed the fundamental in constructing the debate in the first place; of what value is such a polling.

Like I said, first we repudiate tribalism-a pervasive form of Identity Politics by talking candidly about it and voting against it once and for all this time round.

A thriving cottage industry of hate (tribal) defines our political competition

So in the morning I happen to be listening to Classic Fm and this presenter is talking about hate speech and what law enforcement has decided on to tame hate speech. It turns out that a team of law enforcement shall henceforth will be scouring social media sites (he only mentioned Facebook, though I would imagine Twitter, blogs and all sorts of sites), with the aim of netting hate mongers to prosecute for hate speech. That is commendable. I wish they had formed this "monitoring" team much much much earlier.

It is time for some honesty. I wonder whether some of these knee-jerk solutions are really helpful. In many ways, we are all culprits: The Free Press/Media, the politician, the public and the state, in all its forms.

First, what is hate speech in the context of the forthcoming general elections AND how objective will the standard for determining when it has been uttered be? These are some of the questions those of us who want to frankly opinionate about politics have to take into account because, let me tell you, some helpless law enforcer somewhere who happens to come across this post, now that they are monitoring blogs, and who does not like the "direction" of the analysis might pass what is otherwise harmless factual opinion as flouting the law and put me in trouble with the law for no good reason really.

Suffice to say that I have looked at the relevant law and am convinced I am protected by it. The law prohibiting hate speech, as broadly defined in that law, also protects freedom of speech, freedom to have an audience to speak to and more importantly freedom after speech.

So hate speech, the way I see it, that is, in the context of these 2 or so months before March 4 2013 elections (otherwise why didn't they set a team to "monitor" hate speech 3 years ago) is speech that contains tribal prejudices against the persons of the other ethnic group which are political in their ultimate Objective.

The Press/Media (print and electronic) consistently, when reporting on politics discuss politics through the narrow lens of a politician's popularity in his/her so-called backyard (tribe). So you will often here statements like so and so is consolidating his or her "support base". An inquiry into what it means "support base" leaves little doubt that the one thing that is common between the politician and his so-called support base is his tribe. Where a politician has consolidated his support base, the discussion, if you follow, will always turn to one of 'numbers'-the coalitions one can craft together to win the seat, whichever seat is being contested. Again one thing stands out: a coalition will normally take the form of two or three or four or whatever number of 'luminaries' each allegedly representing and coming with their ethnic 'block of votes' to the coalition basket. That is the recurring theme of Media reporting on and/or discussion of politics. It is never about the "real" issues though often we pretend it is.

Part of this problem has got to do with lack of professional journalists, outright quackery and/or unprofessional-ism in the craft of journalism. The real mystery is why our so called Free Media keep inviting into their stations/newspapers and so forth, manifestly ludicrous politicians with their ethnic world-view, to play a role in political and/or civic debates at all.

I guess the media might say they feel they have to resort to and report on politics the way they do because that is what gets people's interest anyway. True. The people themselves drive this engine since media and politicians do not live in a vacuum and unless they themselves loudly and definitively say enough of tribal politics (and therefore as an inevitable consequence hate speech), what is the media to do? The media aside, we are divided enough when it comes to political competition  along very obvious tribal lines. Whether that is the by-product of too much media influence in that direction remains to be written about.I do not know which comes first but we are, seemingly, all in it. However is this an excuse for the media to shirk their responsibility. I do not think so.

The "Free'" Media takes a fairly huge chunk of the blame of all. If they wanted to, they could simply deny these tribal entrepreneurs a sanctuary to ply their trade in their media houses regardless of any other consideration. Why aren't they doing so. The Media, it seems, have this mutually beneficial relationship with this cottage industry of incitement and hate, whether they realize it or not AND enable such politicians in that industry, consciously or not unconsciously, to ply their politics of prejudice and incitement for political profit. The equally culpable sections of the citizenry enjoy the show in turn for fun, as defined by themselves. The Media in turn gains, out of the show, a steady stream of viewership and profits normally associated with being the one most watched.

They (Media) most often are home to these hate mongers. It is in media station that this cottage industry of hate find sanctuary. So, you see my point. Why are we pretending to now be monitoring hate speech in social media when we all know that what is reflected in the social media is just but a tiny reflection of a more perverse problem of ethnicity brought about by decades on bad politicians with their bad politics and bad policies-just to state a part of the problem, but an equally big part of the problem. 

Then there is the state. The role of the State in nurturing tribalism in post-colonial Africa is not news anymore and is a subject for which much which needs to be said has indeed been said and written. Pick any fractured or fracturing African Country and I will show you the awful and tragic role of the state in that state of affairs. In any case what would you expect of policies of Government elected on the basis of a winning coalition of these tribes and not those tribes?

I also think that hate speech (which in this post is synonymous with tribal prejudices-for reasons I have elaborated) has over the years come to fill the vacuum left by the sad yet strange inability of the Media, and to an extent the rest of us, to grow the debate about the real issues that matter e.g growth of economy, education, jobs, insecurity, health, equality and so forth. If these issues matter to us as we claim they do, then we have to grow the debate about these issues.

Kenyan Elections: March 4 2013

This should be the first in a series of posts I intend to write about the forthcoming general election.

On March 4 2013, Kenyans will march to the polling booths to elect, among others, , the President and her Deputy in a general election which, for many reasons, is a first.

For one, we have two main coalitions and the election of either will no doubt change the Country for a long time to come. For the most part also, these two coalitions were formed mainly by forces outside their control. The first Coalition is CORD (Coalition for/of Reforms and Democracy). The other one is Jubilee Alliance (Not to the surprise of anyone, a clown car of sorts) Don't take this to heart; to be fair to Jubilee Alliance, they have one thing in their favor: Numbers. At least its candidate for Deputy President William Ruto keeps on harping on that. 

It is also the first general election under the "new" constitution and because this 'new' Constitution creates 'new' offices such as Senators, Governors of the 47 counties and so forth. Kenyans we will be electing candidates to offices which never existed prior to the passing and adoption of this 'new' Constitution. The election is also a first, and for me an important first in the sense that, finally my dream- to call it what it is, my dream of having a President of my choice will come true, probably.

Let me digress a bit, at this point to make a point which has its own point to make. About 5 years ago, I, like millions of other Kenyans, cast their ballot to choose their President in the general election of 2007. The hopes of these millions were not unlike the hopes of many like me, then and now. But these hopes were dashed by the outright and shameful theft of votes perpetrated, for the benefit of the incumbent by the agents of the incumbent located in institutions which would, unknown to some of us, elect a President for us. I should add that the theft was, if not worse, most likely committed, with the knowledge of the incumbent (though I would have, the heavy evidentiary burden of proving  this allegation- which was their gameplan anyway), and/or those associated with the incumbent as the incumbent was then known. To dispute the facts, as I have presented them, would be same as saying that Post Election Violence that followed the elections, in fact, did not happen. So those who dispute these facts will have to look elsewhere for comfort. The devastating consequences of the announcement of the results of the Presidential election of the 2007 were because the election was mismanaged, votes were stolen, figures were plucked out of thin air and added the incumbent and so on and so forth. And that is what is so different this time round.


Fast forward. If not dead, most of these agents no longer are in the relevant state offices and institutions using state resources to craft ways of going over or around will of the people as collected from the ballot box. there have been immense and far reaching changes at many levels beginning with abolition and replacement of the ludicrous ludicrous Electoral Commission. An ineffective, incompetent Judiciary with an equally ludicrous track record of being at the service of the state has been replaced or rather is being replaced with individuals who understand why they are appointed judges. You have to properly understand your role as a Judge to competently, independently, impartially, fairly and lawfully discharge your judicial functions otherwise you are wasting ours and your Country's time serving in our Judiciary.

But what I will henceforth talk about in this blog will be who among the horses-to narrow the racetrack-the two leading horses (Raila Odinga and Uhuru Kenyatta will win the Presidential Election of March 4 2013. The bad news is not today.