Entries from December 21st, 2012

On Political Coalitions

Posted by on 21st December 2012

Categories: Uncategorized

Having an executive president makes the stakes in the race for presidency necessarily high. The stakes are made even higher by the impending cases against DPM Uhuru Kenyatta and Eldoret North MP, William Ruto, at International Criminal Court, and what either of the two winning the presidential seat would mean for the cases.

Voting patterns in the country coalitions mean that coalitions may be necessary component for winning the elections. The election threshold for president as provided for in the Constitution states that, “a person shall be declared duly elected President if he or she is the only candidate nominated for election.” Of course this is unlikely given that several aspirants have already declared their intention to run for president (see their credentials here).

In the alternate the constitution also provides that a person can become president if they, attain more than half of the votes cast in the election plus of 25 per cent of votes cast in more than half of the 47 counties. However as a consequence of our motivations for voting and voting patterns it is unlikely that any presidential candidate running alone can attain this threshold.

Hence the rush we saw the week before last by political parties to form coalitions to meet the requirement that coalition agreements entered into before the election be deposited with the Registrar at least three months before the election.

Ideally coalitions are supposed to be an agreement for cooperation between different political parties on a common political agenda. However from the leadership squabbles emerging from the coalitions formed less than two weeks ago it is difficult to figure out whether the coalitions were formed with a coherent political agenda other than winning in mind.

Even if we give coalitions the benefit of the doubt and presume that they were formed on the basis of a common political ideology/agenda, it is at this juncture difficult to tell what that agenda is. As it stands neither of the two coalitions that have emerged as the forerunners, Jubilee Coalition and CORD (if not in fact, then certainly in terms of press coverage) have articulated a coherent policy agenda with regards to the issues that a majority of Kenyans care about i.e. security or the economy.

In fact from the disputes over presidential candidature, it becomes ever more evident that the main purpose of political coalitions is to clear the election threshold i.e. garner the minimum percentage required votes nationally to win.

However whether coalitions formed will hold until March 4, 2013, remains to be seen, particularly where ‘dark forces are at play’.

What are your thoughts on the coalitions?

On Parliament: Lack of Quorum, Representation and Pending Business

Posted by on 17th December 2012

Categories: Uncategorized

Parliamentary attendance is woefully low. Last week at the beginning of the parliamentary session on Wednesday 5th only 13 out of a total of 222 Members of Parliament showed up. This number increased by nine, to 22 members an hour later. However by this time the 13 members had already passed two laws through committee stage. The two laws being the Micro and Small Enterprises Bill and The Human Resource Management Professionals Bill at the Committee Stage; this all occurred within the space of five minutes.

This dismal turnout raises issues of quorum, representation and whether this is the way in which parliamentary business will be conducted; considering that the current parliament still has quite a bit of business to do before the end of its term.

Quorum in the current parliament of 210 elected members is 30. This is such a low number when compared to the total number of parliamentarians it’s hard to believe that out of 222 only 13 showed up. That notwithstanding parliament can pass laws and conduct business without quorum as long as none of the members present call the attention of the speaker to the lack of quorum. But I think it’s agreed that this is a less than ideal way in which to make laws or conduct business in what is supposed to be a representative house. But really how representative is the house if only 13 members show up?

Since not all 40 million of us Kenyans can go to parliament to represent ourselves, every five years we elect a select group of people i.e. members of the parliament to work for us, represent us, protect our interests and be our voice in the legislature. However if only 13 members of parliament show up one automatically queries how seriously our elected representatives are taking their representative role, and where is the voice of millions of Kenyans if more than three quarters fail to show up to the house?

Most important implication of the lack of quorum is how parliament is going to deal with the pending business before the end of its term. The current Parliament’s term ends on 14th January 2012. From today it is almost a month until parliament is dissolved. However Parliament has much less than 30 days in which to conclude all its pending business. Considering the House breaks for Christmas on 20th December and government business is only conducted in Parliament n Tuesday, Wednesday and Thursday afternoons 2.30 pm to 6.30 pm; and on Wednesday mornings between 9.00 am and 12.30 pm. There is less 10 days in which parliament can conduct pending business.

Pending business which includes: Publication of the Pre-election Economic and Fiscal Update, which captures pre-election spending as well as allocations to the police and security forces for the election year and any other expenses related to the elections. Parliament is also yet to pass the two key legislations defining how the 47 counties would share funds i.e. the County Allocation of Revenue Bill and the Division of Revenue Bill. Further the Supplementary Budget which is usually presented to Parliament in March has not been prepared and this may lead to a crisis in Government operations.

The dire state of affairs has been raised by the Parliamentary Budget Committee, with the chair of the Committee Elias Mbau being quoted as stating, “We are staring at crisis and the only option is for the House Business Committee to seek for extension of sitting hours so that the matters can be dispensed with,” pointing out that MPs would be busy with nominations in January and would not have time to debate and pass the Bills. Parliament has proposed extending the number of sitting hours per day, and well as passing on the non-crucial business to the next parliament again a less ideal solution.

One of the strongest ways in which we as Kenyans can signal approval or disapproval is through our vote. To register to vote check your nearest voter registration centre here http://vote.iebc.or.ke also check out your parliamentarians profile here http://info.mzalendo.com/position/mp/.

On the Supreme Court’s Majority Opinion on the One Third Gender Rule

Posted by on 14th December 2012

Categories: Uncategorized

How to implement the one third gender rule has been a problem that the government has grappled with for a while now. A few months ago the Attorney General, Githu Muigai, petitioned the Supreme Court to give an advisory opinion on the implementation of the one third gender principle provided for in the constitution.

The principle requires that any elected/appointed body be comprised of more than two thirds of
any gender. The one third gender principle is first seen in Article 81 (b) of the constitution and is
repeated in Articles 96, 97, 98, 177 (1) (b), Article 116, and Article 125 of the Constitution.

However in spite of continuous debate on the one-third gender rule there has been little consensus on how the constitutional provisions are to be implemented. The implication of which would be the likelihood that the gender quotas would not have been realized during the general elections of 4 March 2013 which would have led to a constitutional crisis, with the possibility of the National Assembly being declared unconstitutional.

The seeking of an advisory opinion from the Supreme Court sought to avert such a constitutional
crisis. The main issue being: whether the above provisions of the Constitution require progressive
enforcement of the one-third gender rule or whether the constitution requires that the one third
gender principle be implemented immediately i.e. during the general elections scheduled for 4th
March, 2013.

In its majority opinion the Court acknowledged the, “social imperfection which led to the
adoption of Articles 27(8) and 81(b) of the Constitution: that in elective or other public bodies,
the participation of women has, for decades, been held at bare nominal levels, on account of
discriminatory practices, or gender-indifferent laws, policies and regulations. This presents itself as a manifestation of historically unequal power relations between men and women in Kenyan society and its resultant diminution of women’s participation in public affairs has had a major negative impact on the social terrain as a whole.”

Despite this majority of the Court was also of the opinion that the one third gender principle
as provided for by the constitution could not be enforced immediately and was to be applied
progressively: progressively being by 27 August 2015. The court stated that, “legislative measures for giving effect to the one-third-to-two-thirds gender principle, under Article 81(b) of the Constitution and in relation to the National Assembly and Senate, should be taken by 27 August, 2015.

While the ruling of court on the one third gender principle may be disappointing for some. I for one appreciate the clarity that the Judiciary, and in this case the Supreme Court, has brought to the to the implementation of the one third gender rule. Furthermore had the court ruled otherwise we may have seen the speedy passage of flawed legislation that would have had a negative effect on gender parity in leadership in long-run. Now we know that we have just less than three years to ensure that parliament makes legislation to ensure the realisation of the one third gender principle, let’s get it right.

What are your thoughts on the Supreme Court’s advisory opinion?

Read the full majority decision and dissenting opinion here http://www.judiciary.go.ke/portal/one-third-gender-rule.html

Should Aspirants with Pending Court Cases Run in the Elections?

Posted by on 10th December 2012

Categories: Uncategorized

Good news for those members of parliament and aspirants with the pending civil or criminal court cases. The Ethics and Anti Corruption Commission (EACC), established under article 79 of the constitution and charged with the responsibility of ensuring compliance with and enforcement of Chapter 6 of the constitution on leadership and integrity has stated its position on the eligibility of candidates with pending court cases to run in the next election.

The EACC position is that candidates with ongoing court cases can vie for elected office public office come 4th March 2013. The vice chair of the Commission clarified that the law only bars those convicted of unethical offenses (are there any ethical offenses?) and who have finalised all appeals from running for office.

The EACC bases its position on sections 24 (3) and 25 (3) of the Election Act, 2012. Both of sections provide with regard to aspirants for the position of member of the national assembly and county assembly that ‘a person is not disqualified from being elected…under sub section 2, unless all possibility of appeal or review of he relevant or decision has been exhausted.”

Sub section 2 of both provisions provides for disqualification from being elected to the national or county assembly for a number of reasons the most interesting of which is where one has been found to have, “misused or abused a State office or public office or to have contravened Chapter Six of the Constitution.”

While this is the law the EACC’s position and the application of this law is problematic in several ways:

The EACC is charged with seeing to the implementation and enforcement of Chapter 6 of the constitution. Chapter 6 requires that leaders, holders of public office be selected on the basis of personal integrity, accountability, competence, suitability and that leaders act in a way that, demonstrates respect for the people, brings honour to the nation and dignity to the office, promotes public confidence in the integrity of the office.

One would think that having pending court cases whether civil, criminal or for abuse of office would so call the above qualities into question, and that if EACC really implemented and enforced chapter 6 requirements for leadership and integrity it would preclude those with pending court cases from running for public office.

The position is also logistically problematic, for instance what would happen if an aspirant had civil or criminal action brought against them, and the case was still pending during the time in which they were running for public office. How would it work if said the person were to win the seat and then the pending case decided against them even in the court of last instance. Would they be allowed to stay in office with a conviction or would they be impeached and an expensive by election called?

Not to mention the numerous conflict of interests that would arise from having aspirants with pending cases running in an election, were they to win the seat for which they were running would they attempt to use the influence of their new office to influence the outcome of their pending case. If an aspirant involved had a civil action determined against them for millions of shillings would they attempt to use public coffers to cover the judgment?

Thoughts should aspirants with pending cases be barred from running in the next election?

On the New Traffic Laws

Posted by on 6th December 2012

Categories: Uncategorized

The New Traffic Amendment Act gazetted by the Minister for Transport, Amos Kimunya, took effect on Monday. 10 million shillings in traffic violation fines has been collected in little more than a week since the Act was gazetted.

It’s probably unsurprising then that the Act has elicited varied reactions from the public some: are in favour of it, others vehemently oppose the new traffic laws, and the more cynical see the laws as having the effect of increasing bribery.

The Act provides for steeper offenses for traffic violations. For instance driving under the influence of drugs or alcohol is an offense and upon conviction one is liable to imprisonment of up to ten years or a 500,000-shilling fine or both. A similar fine and term of imprisonment is also applicable to a person drinking while driving a public service vehicle.

The Act prohibits the driving of motor vehicles on the pavement for the purposes of avoiding traffic. This offense if one is convicted of it will incur a term of imprisonment of not less than three months (so it could be more) and a fine of not less than 30,000 shillings or both.

The Act also address speeding violations, the maximum number of passengers allowed on the various kinds of public service vehicles, the weight and type of goods allowed on various types of public service vehicles. The Act provides that if any public service vehicle carries more persons, baggage or goods than it is licensed to carry, the driver, the conductor and the owner of such vehicle; shall be upon conviction liable, to a fine of up to 20,000 shillings and an additional fine of 5,000 shillings for each person in excess of the licensed capacity.

 

Other provisions include the requirement for owners of public service vehicles to employ at least one driver and one conductor both of who a required to be holders of certificates of good conduct issued by the relevant authority. The penalty for the contravention of this provision is a fine of 10, 000 shillings and/or imprisonment not exceeding 12 months. The violation of the requirement for all passengers to wear helmets incurs the same penalty.

Most of the violations outlined in the new traffic law are already sanctioned in law, despite this  these offenses are committed with alarming regularity i.e. cars driving on pavements to avoid traffic, overloading of public service vehicles with both passengers, driving while under the influence etc. It is probably the impunity with which we break road rules and increasing incidents of road carnage that has necessitated stiffer penalties for traffic violations. But whether the new traffic laws will have the desired impact still remains to be seen.

Over the past week owners of, and public service vehicle operators have been on strike, or offering only intermittent services leaving hundreds of commuters stranded. Protestors want the law shelved for further consultation between the government and public service vehicle owners. In the meantime truck drivers have threatened to join the protest against the new laws.

What are your thoughts on the new traffic laws will the new stiffer penalties deter offenders, and reduce road carnage or are the new rules too punitive?

 

On the Low Voter Registration Turnout

Posted by on 3rd December 2012

Categories: Uncategorized

The voter registration turnout has been low, in fact worryingly so, are eligible voters indifferent, disinterested, apathetic or is there is deeper reason for the low voter registration turn out.

The Independent Electoral and Boundaries Commission (IEBC) intends to register at least 18 million voters before the next elections. Initially the registration was process was to take place over a number of months. However process, procedural, and equipment delays as well as all the confusion about exactly when the election would be held has lead to both the postponement of the registration period, but to a shortening of the period for registering voters as well.

As it stands now the IEBC will have to register 18 million voters in the 30 days between 19th November and 19th December 2012. The Commission is adamant there will be no extension on these dates. The IEBC Chair Isaack Hassan is quoted as stating, “Those who fail to get registered within the 30 days should be prepared to miss out on the elections.”

So how is the IEBC doing so far? After the first week of registration the IEBC released a statement that 2.8 million voters had been registered. The 2.8 million registered voters represents a 75 per cent success rate against their target of the 3.7 million voters in the first week.

On the face of it a 75% success rate is not bad, some would even say it’s quite good, until you start crunching the numbers.  If the IEBC intends to  register 18 million voters in 30 days it needs to register at least 600,000 voters per day and 4.2 million voters per week. The first week of registration misses this target by 1.4 million voters, and if registration holds steady at the current rate i.e. no higher no lower, only 12 million voters will have been registered by the end the registration period.

Voting is not compulsory and the election process will likely carry on regardless of the final number of voters’ registered. However it should be noted that the cost of nonparticipation is greater for the citizen than the politician. If large numbers of people do not vote they will still have to abide with an outcome they did not chose, and probably do not approve.

The IEBC has responded to the low voter turn out by increasing the number of hours in day that persons can register to vote. According to the IEBC website voter registration has been running daily (including weekends) since November 19, 2012 from 8 am to 5 pm. To enable more people to register to vote registration centres will now be open at 6am and close at 7pm subject to security considerations. Whether the daily extension is enough for the IEBC reach the target of registering 18 million voters remains to seen.

Have you registered to voter, are you planning to register, if not why not?

 

How Prepared are we for the Next Election?

Posted by on 27th November 2012

Categories: Uncategorized

By now I think most Kenyans are familiar with the statistics from the 2007/2008 post election violence, 1,500 people killed and more than 350,000 people internally displaced. Given the fallout from our last election the question for the next election is are we ready for the 2013 election and are the mechanisms to prevent a repeat or escalation of what happened in 2007/2008 in place.

KPTJ (Kenyans for Peace Truth and Justice) a coalition of Kenyan citizens and organisations has produced a report the readiness of the country to undergo a peaceful, free and fair election. The report titled “Ready or Not: An Assessment of Kenya’s Preparedness for the Next General Election,” focuses on three main areas of election preparedness: a conducive environment for an electoral process, the ability to manage elections competently and inspire public trust in the electoral process, and the ability to settle election disputes.

And to be honest if the next elections are to be credible we need to have all three, the next election will be our most challenging yet. Whereas in previous elections we have voted for just our member of parliament, a councillor and the president, this time we will be voting for 6 seats in one go: the president, a member of parliament, a woman representative for each of the 7 counties, senators, county governor for each of the 47 counties, and a member of the county assembly…it sounds mind boggling.

This is not to say that the government has not done anything to ensure that the 2013 election is not a repeat of the 2007 election. There were several of commissions of the inquiry into the failure of the electoral process in 2007 – the Waki Commission (which dealt with the post election violence), and the Kreigler Commission (which looked specifically at the electoral process). Both Commissions made recommendations that have been taken up to different extents by the government. The most important being a reform of the body that manages the electoral process – we’ve seen the move from the defunct Election Commission of Kenya (ECK) to the Interim Independent Election Commission (IIEC) to the body we have now the Independent Electoral and Boundaries Commission (IEBC).

The mandate of the IEBC includes the continuous registration of voters and revision of the voter’s roll, the delimitation of constituencies and wards, the regulation of political parties process, the settlement of electoral disputes, the registration of candidates for elections, voter education, the facilitation of the observation, monitoring and evaluation of elections, the regulation of money spent by a candidate or party in respect of any election, the development of a code of conduct for candidates and parties, the monitoring of compliance with legislation on nomination of candidates by parties. The IEBC also has wider powers to vet and sanction elections candidates than previous election bodies.
The election laws have also undergone reform, by way of the constitution, the Election Act, and the Political Parties Act. However there have been significant claw-backs, and flip-flopping by parliament on implementation on the electoral laws.

So given the current state of affairs do you think the IEBC and the government as a whole has done enough to (i) establish a conducive context for a successful electoral process; (ii) manage the next General Election reliably, competently and in a manner that inspires public trust in the process; and (iii) proactively manage pre-election violence triggers and settle election disputes effectively?

An ICC Presidency?

Posted by on 23rd November 2012

Categories: Uncategorized

From news reports and from predictions from various pollsters it seems that while implausible it is not impossible that we could have both a President and Deputy President that are facing trials for crimes against humanity at the International Criminal Court (ICC). This would be the case if a joint bid for the presidency were put forward by Deputy Prime Minister, Uhuru Kenyatta and North Eldoret MP William Ruto, and Kenyans voted for them.

Of course whether or not the two can ran for political office let alone the Presidency still remains to be determined? The Attorney General has sought an advisory opinion from the Supreme Court as to whether the two can run with pending ICC trial. However overall there has been little in the way of an official position by the government on whether the two can run. It is also difficult to know if Kenyan’s can depend on definitive direction from the government in this area.

The government’s reaction to the ICC trials against the Deputy Prime Minister and the Eldoret North MP can be termed as varied at best and at worst predictably linear. At the outset the three failed attempts at setting up a local tribunal were met with calls of “don’t be vague, it’s the Hague”. At about this time there were also promises from the government to cooperate with the ICC in the process. However since the pre-trial hearings began there has been a demonstrable shift in the government’s tone towards the ICC. Considerable amounts of tax payer shillings have been spent challenging the admissibility of the case and the ICC jurisdiction over the case, and even more spent on “shuttle diplomacy” at both the African Union and the United Nations Security Council.

Voters had little control or say over these processes, however we have now reached a strange confluence where voters can have a active say. The country’s next election is on 4th March2013, and the ICC trials against Deputy Prime Minister, Uhuru Kenyatta, and Eldoret North MP, William Ruto begin on 10th and 11th April 2013. Imagine a scenario where a month after the election, both the Head of State and his Deputy are headed to the International Criminal Court to face trial for crimes against humanity.

Why is the confluence strange? It’s strange because in most democracies it would be absurd for anyone with indictments for crimes against humanity that include charges of rape, murder, and mass displacement to simultaneously run for president.

Electing a President with an ICC indictment will have definite consequences for the country: international alienation and isolation, possible trade sanctions and embargos, a stop to donor funding which will have dire consequences considering a large part of the countries budget is donor funded. If Sudan is any Zimbabwe any indicator of what international sanctions can do to a country the citizens and not the President will be the ones who suffer the most. And there will always be a conflict of interest between using the Office of the President as a shield against the ICC or using to further the interest and growth of the country and its residence.

As the election date draws nearer and voter registration continue, we voters will have to make a decision as to what criteria we will use to pick the candidates, whether we will apply the criteria in Chapter 6 in of the constitution or whether we will ignore these provisions and revert to old voting patterns.

On the Possible Extension for the Formation of Pre-Election Political Party Alliances

Posted by on 19th November 2012

Categories: Uncategorized

Kenyans are no strangers to politicians shifting to and from one political party to another in the pre-election period. In the previous the elections it has been difficult to keep track of defections of to and from various political parties, and the mergers and disbandment, the alignment and realignment, constitution and reconstitution of political parties.

It is little wonder that in the new dispensation legislative provisions have been made in both the Election Act and the Political Parties Act to place time limits on party hopping as well as the creation of the political party coalitions and mergers. However it appears these legislative provisions are not as iron clad as one would have thought.

Take for instance the Election Act, initially the Act provided that MPs were to declare their party choice 6 months before the election i.e. in October. However members of parliament passed an Elections (Amendment) Bill that has now prolonged the period, in which members of parliament and other aspirants can change political parties, by three months, extending the deadline for changing parties from October 2012, to January 2013.

Currently, section of 10 the Political Parties Act provides for the formation of coalitions between two or more parties before or after an election. If the coalition is entered in to before the election the Political Parties Act requires that a coalition agreement be deposited with the Registrar of Political Parties at least three month before the election. So if the next election is scheduled for the March 4th 2013, this means that that political party’s have just over 2 weeks to submit their coalition agreements to the Registrar to beat the December 4 deadline.

In the lead up to the deadline for the registration of political party alliances, we have already began to see the formation and reformation of yet to be formalised coalitions, and negotiations and renegotiations of deals between political parties. Members of the public are not party to these deals however one wonders in whose interests politicians are acting when they form coalitions, they’re own or the interests of the public.

More recently there have been news reports on calls by Presidential aspirants, Eldoret North MP, William Ruto and Deputy Prime Minister, Uhuru Kenyatta, to amend the Political Parties Act to extend the period for registration for the formation of political alliances. All that would be needed to do this is a simple majority vote in parliament, and though parliament is in recess it’s not impossible to conceive that the extension just may happen.

In Kenya’s case political party coalitions are not so much sanctioned by public i.e. the public doesn’t vote on who or how, or which coalitions should be formed, coalitions are also not the product of a joinder in shared values, or polices rather the political coalitions are based on previous voting patterns and ethnicity. However the ultimate choice on which coalition/non-coalition to vote remains the voter.

On Killings of Police Officers in Baragoi

Posted by on 16th November 2012

Categories: Uncategorized

The attack on a patrol of police officers by cattle rustlers in Baragoi points starkly to the institutional weaknesses that exist within the police force. It seems almost implausible that cattle rustlers no matter how organised would be able to attack and kill 42 out 107 trained, armed police officers, in what the police spokesperson Eric Kiraithe has termed  “easily the worst single attack on police.”

While this may be the worst attack on police forces it is certainly not the first time the police have had trouble dealing with violence. The police experienced difficulties in handling the recent Mombasa riots; there was also the violence in Tana River in which 9 police officers were killed, and several other incidences over violence seem to have overwhelmed the police force in the last two years.

This latest attack on the police raises questions about the manpower, competence and training gaps that exist within the disciplined forces. It also raises questions about the operational preparedness and logistical capacity of not only the disciplined forces but also of the Ministries of Internal Security and Defence to deal with violent crisis on any scale, let alone a national one.

Since 2007/2008 several institutions, both national and international – the Commission of Inquiry into Post Election Violence, the UN Special Rapportuer who was in the country to investigate extrajudicial killings, the National Taskforce on Police Reforms head by Judge Philip Ransley, and Police Reform Implementation Committee –have all made recommendations with regard for the need of a large scale overhaul of the police force.

However apart from Parliament’s passing of three crucial police reform bills – the National Police Service Bill 2011, National Police Service Commission Bill 2011 and Independent Policing Oversight Authority Bill 2011 – in August the rest of the reform process has pretty much happened away from public eye.

The ongoing reforms which the Ministry of Internal Security initially estimated would cost over 80 billion Kenya shillings over a three year period are supposed to address the capacity gaps through proper remuneration and housing, refurbishment of police stations, new equipment and vehicles, upgrading communication equipment and skills training. But from recent event it’s hard to tell how well the reforms are going.

In the current situation five people have been charged with the killings of the police officers in Baragoi. And after lack of decisive action or direction from the President, Ministry of Internal Security, the Ministry of Defence or the Police Commissioner until three days after incident; the President has ordered the deployment of the Kenya Defence Force to Baragoi, a move that has received widespread by Turkana MPs.

I think it would be fair to say at this point that Kenyans confidence in the police, and the ongoing police reforms, is at all time low. It would be interesting to hear from the Commander in Chief, the Ministries of Defence, and Internal Security as well Police Commissioner on the state of the police force and the ongoing police reform process.