Entries from October 5th, 2012

The Judiciary on Leadership and Integrity

Posted by on 5th October 2012

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I doubt anyone would argue that there is need to reform the leadership of the country. However the question of how high to set the bar for leaders is one that country or rather the government has grappled with for a while now. Since the passing of the constitution we have seen the bar for leadership and integrity raised, lowered, and then lowered again. However a recent ruling by the court interpreting Chapter 6 may just have raised the bar again.

The constitution set the bar for leadership and integrity pretty high. Chapter 6 of the requires of leaders: personal integrity, competence and suitability; objectivity and impartiality in decision making; ensuring that decisions are not influenced by nepotism, favouritism, or other improper motives; corrupt selfless service based solely on the public interest practices; accountability to the public for decisions and actions; discipline and commitment in service to the people.

However during crafting of the implementing legislation for Chapter 6 i.e. the Leadership and Integrity Bill, the Cabinet so mutilated the bill’s provisions thereby substantially lowering the bar as far as leadership and integrity are concerned. And according to the Commission for Implementation of the Constitution the bill proposed by the Cabinet was ineffective for the purposes of implementing Chapter six of the constitution and contained clauses that were unconstitutional…contravening the letter, spirit and intent of the constitution and chapter six itself.

Parliament then not only passed the weakened version of the Leadership and Integrity Bill; but also amended the bill to make it even more difficult to exclude those vying leadership on grounds of questionable integrity. The leadership and integrity bill as passed by parliament provided exemptions for those running for elective positions from vetting by state agencies. Parliament removed from the bill clauses requiring state officers to declare their wealth. And last but not least Parliament removed from the bill the requirement that the Ethics and Corruption Commission publish and publicize candidates that have pending criminal cases.

However with its ruling annulling the appointment of Mumo Matemu as chair person of the Ethics and Anti-Corruption Commission (EACC) the judiciary has not only put the debate about leadership and integrity back at the fore, but has reiterated and reinforced the intent of Chapter 6. In its ruling the court held that:

“Article 73 requires state officials to be selected on basis of personal integrity, competence and integrity. The people of Kenya did not intend to include these provisions on integrity and suitability for public offices as mere suggestions, superfluous or ornamental, they did not intend to include these provisions as lofty aspirations. Kenyans were singular desirous of cleaning up politics and governance structures by instating on high standards of personal integrity among those seek to govern us or hold public office.’

Though the ruling was in relation to appointment of Mr. Mumo Matemu as the Chairman of the EACC. The court’s ruling points Parliament, the Cabinet and the citizenry back to the principles in Chapter 6 and raises once again raises the bar for leadership and integrity. So while Parliament and the Cabinet may have gotten away with watering down the Leadership and Integrity Bill, the ruling of the court appears to hold the primacy of the constitution, so will parliament and the cabinet now follow suit.

On the DPM’s Statement on Post Election Violence and the ICC

Posted by on 4th October 2012

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Five years ago we had what many termed the worst post election violence in Kenya’s history. It is estimated that 1,500 people were killed and hundreds of thousands displaced in the violence. Five years on, four Kenyans, two that are presidential aspirants, have been indicted by the International Criminal Court (ICC) in connection with the crimes against humanity committed during the post election violence.

A few days ago the Deputy Prime Minister (DPM), and presidential aspirant, Musila Mudavadi released a statement on the 2008 post election violence and the (ICC) cases. In his statement the DPM suggested the way forward which involved: an admission of national guilt, speedy justice for IDPs, and a resolution of the violence culture once and for all. At face value the DPM’s propositions seem plausible, however read as a whole and in context (full statement here) it is difficult not to take issue with the DPM’s statement, which seems devoid of historical perspective (despite the fact that the history itself is quite recent).

In his statement the DPM seems to conflate the issue of national shame with individual, responsibility, culpability and accountability for post election violence related crimes, stating …“We killed each other in 2008…we must accept responsibility collectively. The nation is guilty. “To prosecute four people for the sins of 40 million is therefore preposterous.” I doubt the millions of Kenyans that had no hand the in post election violence would agree with this statement. It is absurd that the DPM should suggest that the issue of individual accountability and responsibility for post election violence related crimes should be hidden under a banner of national/collective guilt.

The DPM then adds, “ I was among those who supported that any trial related to the PEV must be done locally. I still hold this view because no civilised society can allow their own to be tried in a foreign jurisdiction…if it were in my power, I would bring the ICC trials home as part of shouldering the guilt. Admission of guilt is part of the national redemption.”

From his statement the DPM seems vehement that the ICC cases should be tried at “home” it would appear that the DPM has forgotten the trajectory of how the cases ended up at the ICC in the first place. Let’s recap. In the aftermath of the violence in 2007/2008 a Commission (the Waki Commission) was established to investigate the facts and circumstances surrounding the violence. Among the recommendations made by the Commission was the establishment of a local tribunal to try those accused of organising the violence. It was only on the failure to establish such a tribunal that the Commission recommended that a sealed envelope containing names of those alleged to have borne the greatest responsibility for the violence be passed on to the ICC for investigation and prosecution.

Parliament had the option to not only investigate the post election violence, but also the option of setting up a local tribunal to try those suspected of post election violence related crimes, an option which Parliament rejected not once, but thrice. Further more the government has shown very little political will to try those accused of post election violence at any level let level let alone the highest levels. Almost five years since the post election violence and the country still has more than 5,000 PEV cases pending and only a handful of cases have been prosecuted.

As for bringing the ICC trials home as part of “shouldering the guilt” the DPM seems to forget that government has tried to “bring home the trials” several times (the government has tried to remove itself from the Rome Statute, and appealed to the both the Court and the UN Security Council regarding admissibility) at great cost to and against the will of taxpayer to no avail. If it were truly the DPM’s intention to shoulder the guilt wouldn’t the best way to do this be to support the ICC?

While it may be true that the ICC “will not address the root causes of the growing culture of community and election-related violence” it would certainly be a step towards addressing the culture of impunity and the lack of accountability for instigators of electoral violence.

As for speedy justice for the IDPs, the DPM has been a high ranking member of the Cabinet, holding two positions within Cabinet as DPM and Minister for Local Government during which time he could and should have prioritised the resettlement of IDPs, to suggest this to the media now almost five years seems disingenuous and seems like an empty election ploy.

On Impunity and Hate-speech

Posted by on 28th September 2012

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There are clear legal prohibitions and penalties for the use of hate speech and for incitement to violence in sections 13 and 62 of the National Cohesion Integration (NCI) Act 2008: yet as a country we are still to the see the government use the law to prosecute a single case of either. The reality is that the government has been lax when it comes to prosecuting or even condemning the use of hate-speech, particularly where high level politicians are involved. So lax, in fact, that since the enactment of the NCI Act in 2008, and several recommendations for prosecution by the National Cohesion and Integration Commission (NCIC), there has been exactly zero prosecutions for hate-speech or incitement to violence. It is not difficult to draw a direct correlation between the impunity and lack of accountability by politicians when it comes to hate speech and incitement to violence and the government’s laxity in prosecuting such crimes.

Less than a week since charges for hate speech and incitement against Environment Minister and MP for Matuga, Chirau Ali Mwakwere were dropped; And less than a week since Galole MP, Dhadho Godhana, was relieved of his duties as a assistant Minister for similar allegations of incitement in the Tana River; we see another politician, Assistant Minister for Water, MP for Embakasi and aspirant for the position of Governor of Nairobi, Ferdinand Waititu, make blatantly incendiary comments against members of the Maasai community and in the presence of the Commissioner for Police no less. Seriously it’s hard not to draw a direct correlation between impunity for hate speech and incitement and the government’s laxity in prosecuting/condemning the same.

In a statement the Embakasi MP is quoted as saying “Tunasema hiyo Wamaasi wote hatuwataki hapa Kayole…wamaasai wote ni lazima waondoke ni wa Tanzania na hawana vitambulisho.” In a separate news source he is quoted as stating that all Maasai should be sacked from employment with immediate effect.

Section 13 of the NCI Act criminalises the use threatening, abusive or insulting words or behaviour, intended to stir up ethnic hatred, or having regard to all the circumstances, is likely to stir up ethnic hatred. While Section 62 of the same Act criminalises “any person who utters words intended to incite feelings of contempt, hatred, hostility, violence or discrimination against any person, group or community on the basis of ethnicity or race.”

Even with a narrow interpretation the utterances by the Embakasi MP appear to fall within the scope covered by Sections 13 and 62 of the NCI Act. Not only were the utterances made by the MP threatening, abusive, and insulting with a great likelihood of stirring ethic hatred but on the MP’s utterances could also be said to be intended to, or be very likely to incite feelings of contempt, hostility, violence against the Maasai community. However the MPs guilt or innocence is for the courts to determine.

Yesterday the Director of Public Prosecutions, Keriako Tobiko, ordered the arrest of the Embakasi MP on charges of hate speech and incitement to violence. In response the Embakasi MP moved to court in attempt to block his arrest and prosecution and has followed his attempt to block the charges with an apology for his remarks (Probably in the hope that his case will follow a trajectory similar to the one that resulted in the dismissal of similar charges against Environment Minister Chirau Ali Mwakwere). In many ways this latest incident of alleged incitement and use hate-speech by a high-level politician is a litmus test of the government’s ability and political will to deal seriously with cases hate speech and incitement. It is also a test for the electorate, after all the Embakasi MP, will be seeking our vote for Governor of Nairobi in the next general election.

On The 2/3 Gender Principle and the Potential Constitutional Crisis

Posted by on 24th September 2012

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The government has flip-flopped several times on the issue of the gender parity principle contained in the constitution.  Yet the constitution’s position on the gender parity is pretty clear, Article 81 (1) (b) requires that, “not more than two-thirds of the members of elective public bodies shall be of the same gender.” This provision applies to all elective bodies the National Assembly, the Senate, and County Governments. Further the principle is reiterated severally through out the constitution Article 175 (c) on principles of devolved government, 177 (b) on Membership of county assembly, 197 (1) on County assembly gender balance and diversity etc.

Last year the Cabinet suggested scrapping two third gender principle declaring that the meeting the principle for elective public bodies was “technically impossible.” At the time the Presidential Press Service released a statement that went, “With regard to the requirement for one third representation in Parliament by either gender, Cabinet decided to set up a task force to prepare a Constitution Amendment Bill to deal with this important requirement that is technically impossible to achieve under the current stipulation.” At the time the Cabinet gave no indication of why it was technically impossible to adhere to the two third gender principle.

Following this the then Minister for Justice and Constitutional Affairs, Mutula Kilonzo, introduced a Constitution Amendment Bill that tied together proposals to amend the date of the next election with provisions to ensure that the gender parity as envisioned would be attained.

When the two issues were tied, the government seemed very amenable to ensuring the gender parity was met if only to ensure that the provision to postpone the election was passed as well. However since the date of the next election was resolved by means other than the proposed Constitutional Amendment it seems that the government has lost interest in ensuring the two-third gender principle is upheld.

Recently MP Charles Keter proposed getting rid of the 2/3 gender principle all together, and is quoted as stating, “We (the government) should remove the clause on two thirds principle from the constitution.” A section of MPs has opposed the nomination of women candidates as means to ensure that the next parliament is gender compliant. According to newspaper report a majority of MPs that include Cabinet Ministers Fred Gumo and Dalmas Otieno as well as MPs Charles Kilonzo, and Charles Keter have objected to “women being accorded easy passage to Parliament through nomination by Parties.” This week several MPs opposed the proposal that special seats be created after the election to ensure that the two-third gender principle, stating the proposal would increase the cost of National assembly exponentially and is unsustainable. Deputy Speaker Farah Maalim put the cost of creating special seats at an additional 4 billion shillings per year.

In the meantime parliament’s Constitutional Implementation Oversight Committee (CIOC) has proposed a quota system be used to ensure that the constitution’s requirement on gender balance in the National Assembly is met. The proposal requires that political parties submit party list containing equal number of men and women to the Independent Electoral and boundaries Commission. This list is to be used to nominating MPs to fill any deficiency occurring in the National Assembly after the elections. However Parliament, and political parties are yet to agree to the proposition and the IEBC has admitted the potential difficult it will have convincing political parties to accept the proposal.

It seems that in spite of the constitutional crisis (Article 3 (2) of the constitution declares (2) Any attempt to establish a government otherwise than in compliance with this Constitution is unlawful) that will result if the government fails to ensure that the next National Assembly meets the gender requirement set out the constitution the issue of how meet gender requirements is still in flux.

Why has enacting a legislation ensures that the next Parliament is constituted according to the provisions of the constitution on gender so difficult: And why the continual flip-flopping on the issue of the implementation of the 2/3 gender principle?

On Hate Speech, Conciliation vs. Criminal Prosecution, Is Conciliation Enough?

Posted by on 21st September 2012

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If the prosecution of the Environment Minister for hate speech had gone ahead, it would have been the first in country case of high profile person charged with hate speech that actually proceeded to trial. As it happens this is not to be case, the charges against him have been dismissed, the Environment Minister and MP for Matuga, Chirau Ali Mwakwere, had been charged for hate speech under sections 13 and 62 of the National Cohesion and Integration (NCI) Act, 2008, for remarks made during a 2010 by-election.

Section 13 of the (NCI) Act criminalises the use of threatening, abusive or insulting words, acts or materials that either stir up ethnic hatred, or that are likely to stir up ethnic hatred. While Section 62 of the Act criminalizes, “any person who utters words intended to incite feelings of contempt, hatred, hostility, violence or discrimination against any person, group or community on the basis of ethnicity or race.”

Inciting violence, or hatred, on the basis of ethnicity or race, or uttering words that incite the same is clearly a criminal offence under the NCI Act. So it probably came as a surprise to most Kenyans when the hate speech charges against Minister Chirau Ali Mwakwere were dropped after the complainants withdrew the case. After all the Minister had tried without success, four times, to block his prosecution for hate speech with the court ruling at one point that it was, “against public policy to delay criminal proceedings” against him, and that unregulated speech, such as used by the Minister in 2010, was the type of speech that could lead to social and political conflagration.

So what are the circumstances lead to the charges being dropped? The Minister apologised. The Director of Public Prosecutions (the DDP) dismissed the hate-speech charges against the Minister after he apologised for his utterances stating, “On deep reflection, I humbly tender my most sincere apology to all Kenyans for the remarks I made on July 2010 and during the campaigns for the by-elections as Member of Parliament for Matuga. After lengthy meetings and deliberations with NCIC [the National Cohesion and Integration Commission], Muhuri and other distinguished leaders from the coast region I have signed a conciliation agreement whose effect to apologise and reconcile communities in the coast region and by extension all Kenyans”

Article 52 NCI Act allows for parties to come to a conciliatory agreement, stating, “If following conciliation, parties to a complaint reach an agreement with respect to the subject matter of the complaint, the Secretary shall record the agreement and the parties shall be bound to comply with such agreement as if it were an order of the Commission.” In layman’s terms the NCI Act allows parties to make peace however there is nothing in the clause to preclude criminal proceedings even if conciliation takes place. At this point it is difficult to tell what precedent has been set by the DPP’s decision to drop the hate speech charges against the Minister, will conciliation become a subtitute for the criminal justice process?

In Kenya hate speech and incitement have been a precursor to violence – before, during and after elections. Hate speech and incitement were certainly a precursor to the violence the country witnessed after the 2007 elections. With regards to the inciting of hatred or violence there is direct connection between speech and action and the government must be begin to seriously hold people accountable for inciting people to violence and hatred. Surely this was one of the reasons for the establishment of the National Cohesion Integration Commission and the enactment of the NCI, Act.

On Bribery of Parliamentarians

Posted by on 19th September 2012

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A few weeks Parliament ago rejected the report of Public Accounts Committee that revealed a 1.8 billion shilling loss of taxpayer money as a result of a controversial tendering process in the country’s currency-printing contract. In rejecting the report MPs also cleared Minster Amos Kimunya and the Governor of the Central Bank of Kenya, Njuguna Ndung’u, of their alleged involvement in the deal, and rejected the Committee’s recommendation that neither of the two were fit to hold public office. According to newspaper reports Parliament had attempted to have the names of the two expunged from the report, but later rejected the report wholesale.

On the heels of Parliament’s rejection of the report the head of the Public Accounts Committee, Ikolomani MP Boni Khalwale, accused his fellow MPs of accepting bribes to “kill the report”, alleging that MPs received 30,000 shillings a piece to reject the report.

Following the allegations of bribery made by the Ikolomani MP against them, several MPs have requested that the Speaker of the House sanction the MP. According to a report in the Nation “lawmakers said the allegations that they had been paid to throw out the report had cast aspersions on their dignity and asked the Speaker to intervene so that their standing in the eyes of public is restored.”

Allegations of bribery are serious and those accused of bribery whether in Parliament or not should be subject to the full force of the law. So it is surprising, or maybe not so surprising, that MPs instead of requiring that the allegations be investigated, would ask instead that the MP making the allegations be sanctioned/silenced to save their image with the public. If anything this action in and of itself casts aspersions on the dignity of the House and reinforces in the public’s collective consciousness that MPs are looking after their own interests rather than the electorates.

Also this is not the first time, let alone the first time this year, that MPs have accused by their fellow MPs of accepting bribes to alter/reject reports, or support particular legislative, or policy positions. Earlier in the year Joint Government Whip, Jakoyo Midiwo, accused Members of Parliament of allegedly taking bribes to either pass or defeat bills brought before the floor of the House. In April this year Deputy Speaker Farah Maalim, acting on claims made by other MPs, directed Parliament’s Power and Privilege Committee to investigate claims that an MP solicited a bribe in order to drop a question. In the same month the Kenya Bankers Association was forced to deny allegations of attempts to bribe Members of the Parliament to vote against a bill intended to the cap bank lending interest rates.

Yet despite these serious allegations of legislative favours in return for cash, the public has seen little to no action from the state machinery (Parliament itself, the police, the Director of Public Prosecution to investigate these allegations) Why is this?


On the Doctors, Teachers, and Lecturers Strikes

Posted by on 17th September 2012

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Has the government so poorly managed public services that the only way that public servants (doctors, teachers, lecturers, police) feel they can influence the government is through strike action? The doctor’s strike that started yesterday is the latest in a long line of ongoing public service officers strikes. There’s the teacher’s strike now nearing the end of its second week. The Kenya National Union of Teacher’s (KNUT) issued a strike notice to the government demanding a 300 per cent increase in salary and a 50% increase in responsibility allowance. According to the teacher’s union the government has failed to implement salary and allowance increments agreed to in 1997.

There is the nation wide strike by lecturers and non-teaching staff at public universities that began on Thursday last week. The government quell the strike the government offered the university staff a monthly salary increment of 140 shillings: An offer so ridiculous that it is no wonder that the lecturer’s and university staff have vowed to continue their strike action until a more reasonable offer is made by the government.

In the health sector doctors went on strike yesterday with 3000+ doctors downing their tools and effectively paralysing medical services in public hospitals save for emergency services. The reason for the strike, failure by the government to implement the return to work formula, which included better working conditions and pay, agreed upon during the doctors and health workers strike in December 2011. The doctor’s strike comes less then a week after the Ministry of Medical Services suspended more than 300 trainee doctors striking over poor pay and working conditions at the Kenyatta National Hospital.

The police, have also joined in the action, and are on a go-slow demanding that the government honour salary increment agreements made in 2007.

The discontent within the public sector is no longer a rumble but a roar: And while the strikes will affect many tax paying Kenyans adversely it is hard not to sympathize with the striking civil servants. The teachers’ pay dispute has been pending since 1997, more than 15 years, and anyone who has been to a public hospital knows that the working conditions in public hospital are dismal.

At this point the government has one of two choices they can either repress the strikes or reform the public education, higher education, and health care systems to ensure that the working conditions and salaries of those who work in the sector are improved. At the moment the government seems to have taken an inexplicably ambiguous stance towards the striking public servants, and the industrial courts have declared both the doctors’ and teachers’ strikes illegal and ordering their return to posts. Striking teachers, lecturers and doctors have vowed to continue their strike, in spite of threats of sacking and declarations by government officials that there is no money for increments in the national budget, so it seems the chaos will continue indefinitely. And though the strikes are an indication of the urgent need for reform in the health, education and national security sectors there seems little willingness on the part of the government to undertake the necessary reforms. Does anyone wonder if there would be a change to these sectors if State officers i.e. MPs, the Cabinet etc were all required to use public services?

On the Government’s Responsibility to Protect its Citizens

Posted by on 14th September 2012

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The primary of role the state is to protect its citizens. Our constitution guarantees both the right to life (Article 26.1) and the right to security (Article 29.6) providing that, “Every person has the right to life, and that a person shall not be deprived of life intentionally, except to the extent authorized by the Constitution or other written law.” The constitution and also provides that every person has the right not be “subjected to any form of violence from either public or private sources” (Article 29.6).

However the recent and rising incidences of violence and insecurity, coupled with the government’s inaction/delayed action, probably has most Kenyans questioning the government’s ability to effectively perform this primary function i.e. the protection of its citizens as well as provide and protect constitutional freedoms i.e. the right to life and the right to security of person.

Just 6 months to the next general election, politically/ethnically instigated violence has claimed the lives of hundreds of people, thousands have been displaced, and property lost, causing a tangible feeling of insecurity. Despite promises of “never again” after the electoral violence of 2007/2008 it seems that politically instigated violence is still rife and that insecurity is an endemic part of our electoral politics. Recently the National Cohesion and Integration Commission decried growing ethnic violence in Mombasa County (between the Garre and Degodia), in Wajir/Garrissa (between Ogaden clans), and in Tana River/Lamu County between the Orma and Pokomo Communities and the violent protest in Mombasa following the death of Sheik Aboud Rogo.

The manner in which government is dealing with these incidences of violence leaves a lot to be desired as far a protection of citizens is concerned. In what is the worst incidence of violence since the 2007/2008 post election violence i.e. Tana River, we have seen government officials and members of parliament speak out against the violence, too little to late with not enough action in the initial stages of the outbreak of violence; and the imposition of a dawn to dusk curfew, which did little to curb the violence.

This week MPs Danson Mugatana and Abdi Nuh filed a motion in parliament to have Kenya Defence Forces deployed to Tana River citing Article 241 (3) i.e. “The Defence Forces may be deployed to restore peace in any part of Kenya affected by unrest or instability with the approval of the National Assembly.” Parliament has since passed the motion to deploy the defence forces and Police Commissioner Matthew Iteere has announced the deployment of more than 1000 General Service Unit (GSU) Officers to curb the violence in Tana River. While deployment of the armed forces to Tana River may be a necessary course of action, caused by the government’s delay in acting in the initial stages of the violence, in my opinion it is also a crushing indictment of the government and its failure to provide security for its citizens. The deployment of the armed forces to the Tana River also begs the question, why did the police fail in stopping violence in Tana River in its initial stages?

In your opinion has the government shown sufficient political will to deal with rising political/ethnic violence and insecurity? Beyond the rhetoric is there a demonstration on the part of the government to investigate and prosecute highly placed individuals that support/instigate such violence?

MPs Salaries? What about Teachers and Doctors?

Posted by on 5th September 2012

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Considering that our MPs are some of the highest paid in the world it’s ludicrous that anyone, let alone the Speaker of House, would suggest that the salaries of MPs should be reviewed upwards. Ignoring the country’s public debt, fiscal deficit, inability to honor agreements made with teachers and doctors on pay raises, the House Speaker, Kenneth Marende, did just that.

The Speaker argued that despite a significant increase parliamentarian’s workload in last 7 years, MPs salaries have not been reviewed since 2003, “when the monthly salary of MPs rose to 200,000 shillings, with allowances of 651,000 shillings.” The Speaker then went on to argue the importance of “adequately remunerating Members of Parliament towards a reasonable standard of living commensurate with their role and the weight of their responsibilities.” Stating that MPs salaries were low as compared to other state officers i.e. commissioners and ministers who earn upwards of a million shillings the Speaker also warned against the downward review of MPs salaries.

No one would argue that MPs should be adequately remunerated for the services that the give. However I’m sure that many would query what constitutes adequate remuneration in the case of MPs, and who and what determines adequate remuneration?

At present we have 220 MPs earning a salary of 851,000 shillings each per month. This means parliamentarians cost taxpayers approximately 200 million shillings a month, and more than 2 billion shillings per year, excluding benefits, work related expenses and other perks of the job. Considering that the next House may have 350+ members, the total the cost of MPs to the taxpayer through the roof.

Ask any Kenyan whether they think that Members of Parliament earn too much? Whether the amount that MPs earn is commensurate to the services that they render? And whether the salaries of MPs should be cut? And their answers are likely to be very different from the Speaker’s.

In the former dispensation parliamentarians determined for themselves what constituted adequate remuneration for their services, so its no wonder we ended up with some of the highest paid parliamentarians in the world. Fortunately in the new dispensation this will no longer be the case. The Salaries and Remuneration Commission will be setting the salaries of State officers including the President and other members of Cabinet, MPs, members of county assemblies, county governors, judges and magistrates, members of commissions and principal secretaries. The Commission will so be making recommendations on the remuneration of other public officials.

The Salaries and Remuneration Commission already raised the issue of the sustainability of salaries of MPs at the current rate. Earlier in the year Salaries and Remuneration Commission made an announcement that it would be looking into cutting salaries of Members of Parliament come the next general election, as the cost of the salaries of Members in the expanded house would be unsustainable. A move that will be I’m sure will be welcome by most Kenyans. As for the argument that MPs earn less than other state officers, maybe during the harmonisation of the salaries of state officers and public servants, the salaries of these state officers should also be reviewed downward; and the salaries of doctors and teachers be reviewed upward.

Your thoughts?

Media Roundtable: The Media & Hate Speech

Posted by on 3rd September 2012

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Last month’s media roundtable centred around whether the media is better to prepared to deal with issues of hate speech and inflammatory language than it was 5 years ago, in the lead up to the 2007 elections? The use of inflammatory language by both politicians and lay people in the lead up to the 2007 is cited as one of the major contributors to the post election violence of 2007/2008. Following the post election violence the media was accused of exacerbating the situation through the manner in which it covered, the election and the ensuing violence, and in some instances directly contributing to the violence through the dissemination of inflammatory language through the manner of its coverage.

The most potent symbol of the media’s role in the post election is the indictment of radio presenter Joshua Sang by the International Criminal Court for crimes against humanity on charges related to the dissemination of hate-speech.

Since 2008 there has been a slew of legislation that prohibits the use of speech/inflammatory language and deals with the media’s responsibility in covering it. The Constitution though guaranteeing freedom expression and freedom of the media has specific prohibitions on hate-speech and inflammatory language. Article 33 (2) excludes from the ambit of freedom of expression or freedom of media hate speech; advocacy of hatred ethnic incitement, vilification of others or incitement to cause harm, advocacy of hatred based on race, ethnicity or religion.

Sections 13 and 62 of the National Cohesion and Integration Act (NCI) deals specifically with hate speech and the media’s coverage of it. Section 13 of NCI Act defines hate speech in terms of the manner of speaking, or using material (threateningly, abusively) and in terms of its intended object (to stir up hatred against some group). Section 62 of the Act stipulates that, “Any person who utters words intended to incite feelings of contempt hatred hostility, violence or discrimination against any person, group or community on the basis of ethnicity or race, commits an offence and shall be liable on conviction of a fine not exceeding one million shillings or to imprisonment for a term not exceeding 5 years.” And further that “A newspaper, radio station or media enterprises that publishes the utterances referred to in section (1) commits an offence and shall be liable on conviction to fine not exceeding one million. The Media Act, Political Parties Act, the Elections Act, Information and Communication Regulations also offer extensive regulations to prohibit the use of hate speech.

Despite this slew of legislation prohibiting hate speech there seems to be an increase in the use of inflammatory language by politicians in the lead up to the March 4, 2013 elections. Inflammatory comments made by politicians is said to have played a large part in the to the recent violence in Tana River. The use of inflammatory and divisive language by politicians has contributed to the increasing volatility in the coastal region. Several MPs have been investigated by the National Cohesion and Integration Commission (NCIC) on hate speech/incitement charges however there have been few prosecutions: And politicians are not the only ones using hate speech recently three musicians were charged with inciting ethnic violence through their songs lyrics.

The media is an indispensible part of our democracy. Through coverage of events in the lead up to elections the media it can either act as medium for the dissemination of inflammatory language or hate speech or an expose those who engage in it and ameliorate its effects, it’s basically a question of how responsible journalists and media are. In your opinion is the media is better to prepared to deal with issues of hate speech and inflammatory language than it was 5 years ago? And is the NCIC doing enough to curb use of hate speech and inflammatory language by politicians?