Kenya Chronicles

Stephen Mburu: ECK can’t dictate civic nominees, says scholar

2008-07-24T00:15:00.002-07:00

There is no legal requirement under the Local Government Act for the Electoral Commission of Kenya to ascertain the persons to be nominated as councillors by political parties, a law scholar has said.

Prof Githu Muigai said that after looking at the Constitution, the Local Government Act and recent decisions of the courts on the interpretation of the relevant provisions, the Local Government minister is not obliged to nominate councillors from a list received from the ECK.

“Although the role of parliamentary parties is not strictly defined, it is the duty of the minister to ensure that the persons nominated are appointed in accordance with the proportions set out in the Constitution under Section 33,” he said in a report to Kanu headquarters on Wednesday.

“The role of the ECK, on the other hand, appears to us to be limited to ensuring that gender equality is observed and to determining the proportion of representation of each party. There is no legal requirement under the Local Government Act for the ECK to ascertain from the political parties the persons to be nominated as councillors. Indeed, in correspondence from ECK (letter of February 25, 2008) this is actually referred to as ‘established practice’ which tacitly betrays the weakness of the legal foundations on which this proposition is based.”

The report seen by the Sunday Nation seems to leave Deputy Prime Minister and Local Government minister Musalia Mudavadi in a quandary as he seeks to revoke the nomination of more than 200 councillors allegedly illegally nominated to local authorities countrywide by his counterpart and predecessor in the ministry, Mr Uhuru Kenyatta.

The report was commissioned by Kanu executive director Njee Muturi. Mr Muturi had sought Prof Muigai’s legal opinion on the powers of the Minister for Local Government to remove councillors and public officers vis-à-vis the powers of the ECK and those of the political parties.

The report indicates that Mr Mudavadi’s intention to revoke the nominations made before the formation of the grand coalition government may not have a legal basis.

“The role of the parliamentary parties in the nomination of councillors is not properly defined in the statute,” Prof Muigai said.

Some MPs, led by Budalang’i’s Ababu Namwamba, have called for a probe into the nominations, saying the DPM violated the law when he gazetted them.

“Some councils have more councillors than was required because of the irregularities thus forcing them to incur extra costs in paying them instead of providing services to residents,” Mr Namwamba said.

Mr Mudavadi has since promised to revoke the nominations, arguing that there were cases where more than the stipulated number of councillors were nominated. The law requires that a maximum of one third of the elected councillors should be nominated.

He promised to table in Parliament this week the full list of councillors Mr Kenyatta nominated. But on Friday, he asked for more time to come up with the list. Prof Muigai says the Local Government minister was expected to nominate councillors of the proportion set out in the constitution.

“As to the number of councillors that may be nominated, we have no doubt that this is fixed by law. The proviso to section 39 of the Local Government Act reads as follows: ‘provided that the total number of councillors nominated or appointed under paragraph (b) and (c) shall not exceed one third of the number of elected councillors under paragraph (a) or where the number of elected councillors is not divisible by three the next lowest number so divisible.’

“The role of the ECK under the Constitution is to ensure that these nominations are done in a manner proportionate to parliamentary party representation and in observance of gender equality as contemplated by the Constitution. We have no doubt that the power to nominate councillors does not repose with the ECK, nor is it vested with the power to determine the number of councillors that can be nominated,” he says.

Mr Kenyatta has been accused of nominating more councillors in some areas than the law provided. For instance, in Nairobi, PNU was awarded 13 slots as opposed to the seven that the ECK had provided for, against ODM’s 12. Names of 39 councillors ECK forwarded to him for nomination by PNU were also substituted.

Prof Muigai writes: “In a situation where election results have not yet been finally determined, our view is as follows; Under Regulation 41 of the Presidential and National Assembly Regulations, where the ECK is satisfied that the outcome of outstanding results would not affect the outcome of the presidential contest, it may announce the winner.

"The Local Government Act is reticent on how such a situation would be resolved. It does not contain a similar provision, but it appears to us that this would be the most logical principle for the ECK to apply in determining the relevant proportions where election results have not been finalised.

“The duty to determine the proper proportions of nominated councillors ought to be discharged on the data available at the time of taking the decision. Ultimately, however, there is no bar to the minister appointing councillors on the basis of the total number of electable councillors. In doing so, the minister has in as much as is practically possible to have regard to the spirit of the statute.”

Mr Mudavadi told Parliament the ministry was reviewing the Local Government Act (Cap. 265). He added that one of the crucial areas which need urgent review is the criteria for nomination and revocation of councillors.

An ally of Mr Kenyatta, Mr David Murathe, told the Sunday Nation on Friday that if Mr Mudavadi revoked the nominations it would have “far-reaching” political implications. He said the “requests for nominations” came from parties, party leaders, ministers, MPs and individuals.

A number of PNU MPs, mostly from the Mount Kenya region, have come out strongly in defence of the DPM, who is now Trade minister.

The MPs, Government Chief Whip George Thuo (Juja), Elias Mbau (Maragua), Jamleck Kamau (Kigumo) and Ngata Kariuki (Kirinyaga Central) said there was a plot to hound Cabinet ministers from the PNU side out of office over allegations of abuse of office.

“The so-called scandal of nomination of councillors has no basis. It is only meant to smear Mr Kenyatta’s name for obvious political reasons and, probably, to divert attention from the scandal at the Immigration ministry. If Parliament is going to be about witch-hunt, lynch mob tactics and character assassination, then the future of the coalition government is indeed very bleak,” Mr Murathe said.

Evans Monari: The law on nomination of councillors

2008-07-24T00:15:00.001-07:00

What are the powers of the Minister for Local Government to remove councillors and public officers vis-à-vis the powers of the ECK and those of political parties? This can be answered by looking at the Kenya Constitution, the Local Government Act and recent decisions of the courts.

The number of councillors in a municipal council is provided by Section 26 of the Local Government Act. Under Section 26 (1B) of that Act, the number of councillors shall be “such number of councillors nominated by the Minister to represent the Government, or any special interests, as the Minister, may, by order, determine”.

The criteria for appointment of nominated councillors is provided under Sections 26 (2) and 28 (2A) of the Local Government Act Cap 265, both of which borrow from the provisions in the constitution concerning nomination of Members of Parliament.

The criteria and principles for appointment of nominated members of the National Assembly under Section 33 of the constitution “shall mutatis mutandis, apply to the nomination of councillors under this section”.

Section 33 (1) to (5) of the constitution (the section to which Cap 265 refers) reads as follows, “subject to this section, there shall be twelve nominated members of the National Assembly appointed by the President, following a general election, to represent special interests”. It goes on to list the criteria for appointment of nominated Members of Parliament.

Nomination and appointment

In my view, the divergent opinions on the powers and roles of the various stakeholders revolve around the interpretation and distinction between the meaning and purport of two concepts – nomination and appointment – as used in the various provisions.

Under Section 33 of the constitution, it is clear that the nomination of members to the National Assembly is done by the parliamentary parties and then the appointment is done by the President. Section 26 (1B) of the Local Government Act on the other hand contemplates the nomination of councillors by the Minister.

This distinction is not inapposite. In my view, when Section 26 (2) of the Local Government Act refers to Section 33 of the constitution, it only borrows the criteria for appointment of nominated members and not the criteria for the nomination itself. The issue of nomination of councillors is provided by Section 26 (1B) of the Local Government Act.

On a literal construction of this section, nomination is within the Minister’s remit. The Minister only looks to the constitution to discern the criteria which must be met before the person he has nominated may be appointed.

The use of the words "mutatis mutandis" is particularly instructive and perhaps its importance is often overlooked. This is a Latin expression which means “with the necessary changes” or “with those things having been changed which need to be changed”.

Apart from replacing the word President with the word Minister, and member of the National Assembly with councillor, it is also necessary to change the fact, or to apply the provision bearing in mind that the Minister is empowered to make a nomination under the Local Government Act.

It must be remembered that the provisions contained in Section 33 of the Constitution were brought in by amendments in 1997 (the IPPG Amendments) and the object of the amendments was clearly to ensure the unbridled power of the President to nominate was taken out of his hands and given to the parliamentary political parties.

This way, the President would only be entitled to influence the nomination of the number of persons which his own party would be entitled to nominate.

Unbridled powers

Section 26 (2) of the Act was brought in to reflect the amended Section 33 of the constitution. If the powers of the President to nominate were successfully challenged and the challenge written in the constitution, then I do not understand how it can be said that the unbridled powers of the Minister to revoke the nominations would remain wholly untouched.

Firstly, a nominated MP is nominated by a parliamentary party and appointed as a nominated member by the President, while a nominated councillor is proposed by a parliamentary party and nominated by the Minister.

Secondly, according to the prevailing constitutional order, Parliament is an independent institution from the Presidency. In contrast, upon nomination, a councillor joins a local authority which is directly under the supervision of the Minister.

Therefore, the role of the parliamentary parties in the nomination of councillors is not properly defined in the statute.

It is however arguable that although the role of parliamentary parties is not strictly defined, it is the duty of the Minister to ensure that the persons appointed are appointed in accordance with the proportions set out by ECK in accordance with Section 33 (3) of the constitution.

Role of the ECK

The constitution seems to limit the role of the ECK to determining the proportion of representation of each party and ensuring that gender equality is observed. The power to nominate councillors does not repose with the ECK, nor is it vested with the power to determine the number of councillors that can be nominated.

As to the number of councillors that may be nominated, this is fixed by law. The proviso to section 39 of the Local Government Act reads as follows: “Provided that the total number of councillors nominated or appointed under paragraph (b) and (c) shall not exceed one third of the number of elected councillors under paragraph (a), or where the number of elected councillors is not divisible by three the next lowest number so divisible.”

Ultimately, however, there is no bar to the Minister appointing councillors on the basis of the total number of electable councillors.

The writer is a senior advocate and council member, LSK.

Dorothy Kweyu: Judge who rejected Muluzi's bribe

2008-07-24T00:09:00.002-07:00

A MALAWI HIGH COURT JUDGE is making waves for unusual reasons. In a corruption-prone continent, Mr Justice Edward Twea has caught the nation’s imagination after rejecting a cash “gift” from former President Bakili Muluzi.

Mr Muluzi is the man who made history when he dislodged President Kamuzu Banda to become post-independence Malawi’s second president in 1994.

And the good judge, according to media reports, handled the rejection rather dramatically; he had the High Court and Supreme Court of Appeal deputy registrar return Sh7,000 (15,000 kwacha) to Mr Muluzi, who had given him the ‘‘gift’’ when the former was admitted to a hospital in Blantyre last year.

Mr Justice Twea had good cause to reject Mr Muluzi’s cash gift; he happens to be one of the three constitutional court judges handling a case that seeks to interpret Section 83(3) of Malawi’s constitution, which seeks to restrict the president, the vice-president and the second vice-president to a maximum two consecutive terms.

Mr Muluzi became president on a crest of popularity following decades of the Banda dictatorship. Then, Malawi Young Pioneers held sway.

The Pioneers literally forced beleaguered citizens to buy membership cards from the ruling Malawi Congress Party (MCP), which alone guaranteed their access to markets, grinding mills, hospitals, transport, you name it.

The Young Pioneers would simply leave a batch of cards at an office, only coming back for the money.

Pregnant women had to buy, not only their cards, but also for their yet-to-be born babies.

These Pioneers had a military wing reportedly trained by Israelis, which was better equipped than the national army.

IT WAS, THEREFORE, WITH A HUGE sigh of relief that Mr Muluzi took the reins of power a year after a successful referendum for multiparty politics in 1993.

But Mr Muluzi’s good will among the people was short-lived — a fact that was amply demonstrated when he failed to convince Malawians to allow him to run for a third term.

Enough about historical background; the issue at hand is Mr Justice Twea’s rejection of Mr Muluzi’s K15,000. Not only that; the country’s Anti-Corruption Bureau is currently investigating the former president on another case involving bribery of court clerks.

While the amount involved may be trivial, there is no escaping the judge’s own explanation: “…it would be inappropriate and unethical for him to accept the money that accompanied your good will message”, wrote the registrar of the High Court.

Given that the money was linked to Mr Muluzi’s visit to the judge, who had been admitted to hospital when the gift was made, it is easy to accuse the judge of being petty.

After all, isn’t common for relatives, friends and well-wishers to offer gifts to those in hospital?

And yet, Mr Muluzi was not your normal well-wisher; he is a former Head of State seeking another term. It is, therefore, common sense that his financial gift should raise a red flag.

Secondly, Mr Justice Twea’s rejection draws attention to the thin line between traditional hospitality and graft. When does a gift cease to be a gift and become a bribe that compromises a public officer in the execution of his duties?

Karadzic’s fate a lesson

2008-07-24T00:09:00.001-07:00

Coming so soon after the International Criminal Court’s indictment of Sudanese President Hassan al-Bashir, the capture on Monday of former Serbian President Radovan Karadzic reinforces the message that leaders everywhere must ultimately be called to account.

Karadzic was captured in his own country after 11 years as a fugitive, and now faces almost certain extradition to The Hague where the UN War Crimes Tribunal will be glad to receive him.

Karadzic is the most prominent Balkan war crimes suspect arrested since former Serbian President Slobodan Milosevic was captured and taken to The Hague on genocide charges in 2001. Milosevic died in custody.

That a group once so dominant and virtually untouchable in the European tribal conflicts was reduced to being hunted like common criminals is powerful testimony to the role an international justice system can play.

As we in Kenya watch to see whether one of our neighbours, President al-Bashir, will be slapped with an arrest warrant over the Darfur genocide, let us not forget that some of our own leaders, too, have stoked ethnic warfare.

The impunity displayed is based on the premise that some are untouchable. But fortunes change, and in the end Karadzic and Milosevic were ousted, captured and turned over for trial by their own people.

Charles Onyango Obbo: Let ‘unteachable’ children go home and grow yams

2008-07-24T00:08:00.000-07:00

A few years ago, we were all gathered in our parents’ countryside home for the end of year holidays, and one day a heated argument broke out about the quality of education.

As a general agreement seemed to be emerging that education had gone to the dogs, our old woman, who had said nothing, got up, and as she walked to her kitchen, said: “You people are making too much of this education issue. Just let the children go and grow up in school.”

I had never thought of school as a place which, if it didn’t offer a meaningful education, was nevertheless a good one for rural children to go to and while away the time as they wait to become minor village officials, join the army, or become chicken thieves if all else failed.

In other words, the role of school had changed, and society needed to adjust its attitudes and expectations accordingly.

I was reminded of this question in the face of the recent spate of strikes in Kenya in which several schools have been torched, with a student being burnt to death in one.

The country is angry and shocked at the tools of sin – cocaine, bhang, alcohol, and “weapons” like petrol – that have been unearthed in searches at the troubled schools.

The Government has responded appropriately, banning mobile phones, TVs and DVDs from schools.

Yet one can’t feel that we are all missing the big picture. It is criminal to burn property, and even more so, to kill someone with the fire. However, the schools’ crisis and burning of buildings is not uniquely Kenyan.

In the last year or so, 25 schools have been burnt in Uganda. Dozens of students have died in the fires. A few of the schools were burnt by rogue students, but most by other miscreants.

The tragedy of the fires aside, you might say that the arsonists are devils carrying messages that are well worth listening to.

In Britain, though you don’t have violent strikes and arson, the debate about education is even more furious.

Recently, Chris Parry, the controversial chief executive of the Independent Schools Council, an organisation that represents half of the 2,500 private schools in the UK, caused quite a storm when he told The Guardian that the reason state schools were in a crisis was because they were struggling with “unteachable” children, ignorant parents, staff who don’t want to be there, and a shortage of leadership.

His remarks, though slated as “snobbish and ill-informed”, deserve attention in East Africa. Parry said even private schools, which did better, needed to be more up-to-date and to face future challenges.

In this future, he said, computers will increasingly replace teachers. He predicted that grey dog-eared textbooks will soon be out, and pupils will learn via Wikipedia-type programmes in class.

The role of the teacher will be to help them apply the facts they build from the Internet.

Parry’s most interesting idea is his most controversial; that some students are simply “unteachable”.

In an age of political correctness where we believe every child is entitled to an education, and has in him (or her) to become an Albert Einstein, to say some people are “unteachable” sounds grotesque.

But on second thoughts, it makes sense. Children who find school too boring, think the teachers idiotic or oppressive, and lose their minds due to fear of exams, should not be forced by parents and pressured by society to go to school.

They should be directed to schools where children go to “grow up” until they move on to become footballers, or fellows who throw stones at anti-riot police during demonstrations.

No doubt, all this is easier to say if your child is settled in a nice school and doing well in class.

In the same UK, some universities think lower education is such a shambles, and national tests have become so hopeless, that they are introducing their own entrance examinations.

Imperial College in London, Oxford and Cambridge, are among the universities that have introduced their own entrance exams for certain degree courses.

It’s what these universities are looking for that should be of more interest to us: Intelligence, yes, but also creativity, innovation, and problem-solving skills rather than subject knowledge.

Sir Richard Sykes, Rector of Imperial College, told The Times that they will be looking for factors that “are not too dependent on rote-learning” – as most education in Africa is.

Indeed, I recently read that for the Maths skills the new world needs, it’s probably more useful to be accomplished in solving Sudoku puzzles than spending years in class cracking Geometry and Algebra.

People like Parry would argue that instead of taking away mobile phones and TV sets from schools, the best policy would be to allow more of them and greater access to the Internet.

He would probably also say that the best thing to do with schools that have been burnt is not to rebuild them, because they were largely useless, anyway. It’s counter-intuitive. It’s tough. But possibly right.

Strikes: Think beyond simplistic ‘solutions’

2008-07-24T00:07:00.001-07:00

For months now, the education sector has hurtled from one crisis to another. First it was the Form Four exam debacle in which 40,000 candidates were given the wrong results.

Then followed a conflict with teachers over the yet-to-be-explained performance contracts, and lately, the unprecedented school strikes, one of which claimed the life of a student.

Yet, until last Sunday, neither Education minister Sam Ongeri, nor his top officials had come out forcefully to comment on the violence in schools. And when they did, they sounded brash and unconvincing.

The worst fears were confirmed on Tuesday when Prof Ongeri issued a ministerial statement in Parliament in which he outlined measures to be taken to contain the student unrest. But the statement rang hollow because the diagnosis and prescription for solving the problem were simplistic.

For example, the minister banned the use of mobile phones in schools and vetoed the purchase of luxury buses.

How do you enforce a ban on mobile phone use in schools? Do you confiscate or disable them? And what’s the relation between a luxury bus and discipline?

All these are side issues, and to put a premium on them demonstrates a singular lack of comprehension of a more fundamental problem.

In the first place, have we critically examined the goal and philosophy of our education and subsequently checked if they are achievable through the current structure, syllabi, calibre of teachers, and resources?

Secondly, when we have a system where children have to study too many subjects, forfeit leisure time to read, cram to pass exams, after which the exams are leaked and the results altered — can we talk of a philosophy-based system of education?

When illiterate people are appointed to school boards, unqualified students admitted to the best schools, non-performing teachers promoted to head schools, and people who presided over a disgraced examination body reappointed, can we talk of order in the system?

The strikes are symptomatic of poor governance and values-less society. Without proper governance and principled leadership, this country’s education is headed to the dogs. Prof Ongeri and his bureaucrats should think beyond simplistic solutions.

Habel J Nyamu: Let’s seek ways to fight the social cancer in governance

2008-07-24T00:07:00.000-07:00

SINCE BEFORE INDEPENDENCE, both the government and the servants lived in mutual suspicion and mistrust. After 40 or so years of independence, we have not made any great strides to improve on this relationship.

Many public servants within the Executive, Legislative and Judiciary, and NGOs suffer a silent desire and ambition to become wealthier and more politically powerful than the next-door competitor, and to wield that power over the whole land if possible.

If this were not so, we should not be witnessing so much cut-throat competition for political positions especially in parliamentary elections.

In governance, the evil germ of social cancer lives in those who attain the ranks of governance, not to serve their fellow Kenyans faithfully and selflessly towards the achievement of prosperity and peace for all, but for how they can personally benefit from the system, whether honestly or dishonestly. This is not a Kenyan specialty, but a common human weakness all over the world.

WE CANNOT BUT ACCEPT THAT THE need to be elected to local authorities and to Parliament has injected quite a dose of ‘‘political rally verbal but empty democracy’’ which is only skin-deep in terms of serious implementation of development policies. The ‘‘electoral masters’’ revert to ‘‘powerless and poorly ruled civilian servants’’ as soon as elections are over.

All this stuff about social evil and social cancer is obviously easier said on the quiet than tackled publicly because the lure or greed for money and power is too strong for ordinary mortals to resist.

But because no country can exist without some form of government, countries must take a certain degree of risk and entrust their governance to potentially weak, corruption prone, greedy, gluttonous, power-hungry, double-talking, survivalist, clannish, tribal, envious, insincere, proud, egotistic, vain, immodest, ostentatious and every other characteristic that the Good Book prohibits.

It is the only by the grace of some powerful orderliness which holds the universe together, that within the same governments, we have, usually in a minority, some sober, confidently humble, highly nationalistic, public-spirited, law-abiding, peace-loving, empathetic, considerate, egalitarian sons and daughters serving in those governments.

This is the category that any serious government spends fortunes trying to strengthen both in numbers and quality through the training process.

Thousands of years ago, a deep believer in good human governance went up a high mountain and brought down a code of behaviour for peace and prosperity. It was egalitarian, orderly, law and order abiding, full of mutual love for one another, greed-free, respectful of the mystery of the universe, envy-free and peace-loving.

Zeroing in on Kenya about ‘‘social cancer’’ in governance, one could ascribe the failure of several development programmes to the men and women in government given to frustrating all efforts aimed at achieving welfare and prosperity for the people.

It goes without saying, for example, that many Kenyans wonder why the law is incapable of dealing a final blow to endemic corruption. All of us wonder whether it is the law which is weak, whether it is the implementers of the law who are the problem.

In every case, the buck stops with the leaders in government, the leaders not in government, and the public who do not complain against mismanagement of public affairs.
Of equal, or greater, concern is the ad hoc manner in which Kenya’s land tenure policies have been dealt with in the past. Let it not be said that it is because the matter is in the hands of the ‘‘landed gentry’’ all in government because that would be terribly defeatist.

LET US ALSO REMIND OURSELVES that before the white man set foot here, all land belonged to all, under the clan. When private ownership was instituted by the white man, many black Kenyans became, strangely enough, landless.

Since 1975, the writer has vigorously been fighting against the policy of encouraging civil and public servants participation in business.

His 20-page pamphlet of that year opposed this, as it was to be later opposed by both Sam Waruhiu and Philip Ndegwa in their respective reports on civil service terms of service.

Research on procurement practices would be an eye-opener as to where huge sums of public funds end up. Allowing men and women endowed with the power to issue documents and authoritative letters enabling the private business to operate is tantamount to giving them a ‘‘blank cheque’’ to be corrupt.

Mr Nyamu is a former commissioner with the Electoral Commission of Kenya

Josephine Kuluo: Ignore warmongers on the Mau

2008-07-24T00:06:00.001-07:00

I HAD THE PRIVILEGE OF attending the Stakeholders Forum on the Mau Forest at the KICC and like every right thinking participant, I was appalled by the destruction of the Mau Forest.

The importance of the Mau as a water tower and catchment area cannot be over-emphasised. It is an indispensable source of many major rivers and lakes in Kenya and Tanzania, the most prominent being the Mara, Sondu, Nyando and Ewaso Nyiro rivers and lakes Victoria, Nakuru and Natron.

The Sondu Miriu Power Project is dependant on flows from the Mau which have been erratic as a result of the forest’s destruction. River Mara, which is a lifeline for the world-famous Maasai Mara Game Reserve, is facing a severe drop in water levels.

As a matter of fact, tens of hippos died late last year as a result of the low water levels. Lake Nakuru is now a muddy pool and all the flamingos have migrated to Lake Natron in Tanzania. The situation is so grave that it is incomprehensible that leaders worth their weight can politicise an issue of such seriousness.

Whereas they are crying over the fate of professional squatters, land speculators and a few genuine title holders, the lives of millions of people and animals that depend on the Mau are under serious threat, and they are crying out for help.

Those who bought land, or illegally occupied the forest after senselessly cutting down trees, were well aware that they were not welcomed in the forest as Narok County Council had relentlessly tried to restore the boundaries (as recommended by the Ntutu Commission) only for the locals to return after being incited by politicians.

WHEREAS CROOKS BOTH IN GOVernment and outside conspired to degazette, subdivide and sell portions of land within the Mau, their status legally is that of thieves who did not have any proprietary rights or interests to transfer to third parties.

Therefore the said sale and/or transfers, even for a consideration, were illegal and ineffectual to create, transfer, effect any estate, interest or proprietary right or title on the buyers as it was illegal ab initio and further, nothing affected, prejudicially any right, power and privilege of the county council as the custodian of the trust land. Therefore, the only recourse open for these buyers would be restitution from the vendors.

Because the Government is willing to resettle or compensate those with genuine titles, this is an option they should jump for at the earliest opportunity lest they lose it all.

They should ignore the warmongers inciting them not to leave the Mau as the resolve of the Government and all stakeholders is absolute. Everyone must leave Mau Forest or be forcibly removed.

The good of the majority supersedes the cry of the few callous and reckless settlers bent on bringing the eco-system in the whole region down.

Calling us busybodies will not deter us from our march to reclaim Mau Forest and preserve the largest water tower in Kenya.

As for the so-called leaders advocating defiance of the moratorium to vacate the forest and calling it a political decision after they are supplied with concrete evidence of the gravity of the situation, their actions are selfish and preposterous to say the least and should be dismissed with the contempt they deserve.

Ms Kuluo is an advocate of the High Court and a resident of the Maasai Mara.

Overhaul KPCU now

2008-07-24T00:06:00.000-07:00

The corporate world was last week treated to the bizarre spectacle of the mass “resignation” of almost all the top managers of the Kenya Planters’ Co-operative Union.

Days after this melodrama which appears to have revolved around the CEO, Mr Peter Kimani, Agriculture Permanent Secretary Romano Kiome added another twist when he announced that 10 officials from the Co-operative ministry would move in to fill the void.

We do not wish to get caught up in the flurry of self-righteous accusations and counter-accusations between the board and the management of KPCU. However, we have some observation to make.

For nearly two years, KPCU, hobbled by increasingly powerful bad debtors, competition from other millers and marketers, and fluid Government policy, has been hovering around like a rudderless ship.

In between, General Manager Ruth Mwaniki was sacked, while chairman Stephen Kirubi died. Then the KPCU board was dissolved by the Government, ushering in an uncertain system where the routine annual resignation of a third of the board was disregarded. That is why all of them have to go at once, during the coming annual general meeting.

All the ambitious plans to sell packaged and branded coffee to China and other countries appear to have dissipated along the way.

Our point is that neither management nor the board has given coffee farmers any reason for hope. Co-operative minister Joseph Nyagah has to effect a drastic overhaul of the KPCU human and financial mess. We can only hope he won’t make things worse.

Pact must benefit Zimbabweans

2008-07-24T00:04:00.000-07:00

The agreement reached on Monday between Dr Robert Mugabe and opposition leader Morgan Tsvangirai should hopefully deliver the people of Zimbabwe from misery.

But there should be no illusions about the complexity of the problem. The rival Zimbabwean leaders are nowhere close to reaching an agreement. The document they signed before South Africa’s President Thabo Mbeki was merely an agreement to start talking.

Perhaps in the context of the Zimbabwean impasse, that was an important first step, and the international community must lend its full support to a negotiated settlement.

The preference seems to be towards a power-sharing deal, but the principle driving any pact must go beyond a deal satisfactory for the contenders and focus on one that is favourable to Zimbabweans.

The negotiated settlement in Kenya that brought the country back from the brink of disaster following a disputed presidential election has been hailed as a model for Zimbabwe and other countries facing similar political problems.

Such a settlement may well be necessary to head off a complete national breakdown, but it should only be as a last resort.

The point here is that negotiated power-sharing deals must never become the fashionable alternative to undiluted democracy; in fact they are a pointer to a failure of democracy.

Citizens of any nation who exercise their right to vote for leaders of their choice do not troop to the polling stations in expectation of an abortive election followed by some arrangement between the contenders. If such deals become the norm then democracy as we know it is not worth the ballot paper.

The trend could also encourage incumbents to defy the will of the people and hang on despite the electoral outcome, confident in the knowledge that they will retain power, or partial power, by other means.

So if the Zimbabwean leaders get to actual negotiations, they must seek to go beyond the Kenyan model and look for a formula that actually tries to address the will of the people.

Jaindi Kisero: Move over contractors, cowboy architects are now kings

2008-07-24T00:03:00.000-07:00

IT WAS PRIME MINISTER RAILA Odinga who popularised the phrase ‘‘cowboy contractors’’ in reference to a group well-connected contractors who had at that time come up with clever schemes of making money from the Government without doing any work for it.

This happened especially towards the end of former President Moi’s rule.

They would clog the Government payment systems with fake pending bills. That is how we got to a point where the Government was spending more money paying court awards, pending bills and on incomplete road projects than on the construction of new roads.

The business of chasing pending bills had become a business unto itself – a secondary market complete with well-connected brokers whose jobs was to chase these payments on behalf of the cowboys.

If, as a permanent secretary, you resisted paying these cowboys, they would sue you in the High Court, and invariably, they would win.

There were many cases where judgment was entered against the Government because the State did not a file a defence.

At the end of the day, all the payments demanded from the Government would be “legal”. It did not matter that the public was not getting any service.

We need to add to this breed a category known as cowboy architects and quantity surveyors.

This is how this lot schemes the deals. A chief executive of a public corporation looking for a project from which to create kick-back opportunities comes up with some lofty project – a plan to build a staff training institution, for example.

The project would hurriedly be taken to the board for approval where it would be justified on very lofty grounds with uplifting arguments.

Within weeks, a board approval will have been received and the chief executive given the go-ahead to contract an architect and quantity surveyor.

It did matter whether there was money to fund the project or not because the aim was to get kickbacks from the cowboy architect and surveyor.

In a matter of months, the chief executive will have appointed an architect and other consultants to design the building.

Today, there are several cases where public corporations have paid hundreds of millions of shillings to quantity surveyors and architects for projects which did not see the light of day.

I have recounted the scheme in detail as an entry point to a discussion of a case I recently came across.

Away from the limelight, a key public institution is currently fighting having to pay a group of consultants a pending bill amounting to Sh390 million.

THE BACKGROUND TO THE SAGA IS as follows. Some time in 2002, the chief executive of this corporation sought and received board approval to construct a modern training school for its staff.

When approval for the project was sought from the Treasury as dictated by the State Corporations Act, former Permanent Secretary Mwaghazi Mwachofi wrote back informing the organisation that it did not need to invest in a training school. He had seen the project for what it was.

What happened thereafter is not clear. But the parastatal went ahead and contracted architects and consultants who proceeded to design the buildings and deliver all the drawings.

Unfortunately for the CEO, he was removed from office by the administration of President Kibaki in early 2003.

Last year, the cowboys slapped the parastatal with a Sh700 million bill. At the end of it all, the parties ended up before an arbitrator who made a ruling in favour of the consultants but reduced the pending bill to Sh390 million.

The upshot is that the board and management of the parastatal have gone to court to challenge the verdict.

But the Office of the Attorney-General has advised that the payment is valid and that challenging the arbitrator’s decision in the High Court was ill-advised. Right now, the cowboys are lobbying intensely to have the payment released.

On paper, everything here is legal. These were professional services rendered and one cannot accuse the cowboys of engaging in corruption.

But is it really fair to force a parastatal to spend hundreds of millions of shillings in public resources for a project that was, in the first place, clearly started for the wrong reasons?

In economics, the term opportunity cost is used to define the alternative which you forgo when you spend time and money on one thing and defer spending it on another.

The parastatal I mention is an institution involved in providing very critical services to the ordinary man and woman. Clearly, this institution can only pay these cowboys at a huge opportunity cost.

I know of another parastatal that paid hundreds of millions of shillings to a cowboy architect in 1997 to design a hotel near the airport. To date, that hotel is yet to see the light of day. It is all perfectly legal. You can’t beat these guys.

Albert Muriuki: NSSF, Delta locked in city car park valuation dispute

2008-07-24T00:01:00.000-07:00

The purchase of a parcel of land adjacent to Barclays Plaza in Nairobi that has served as a car park for hundreds of residents has been praised as the biggest real estate deal that could change the city’s landscape this year.

But emerging information on the deal reveals that the vendor, the National Social Security Fund, which negotiated a price of Sh1.375 billion for the land is locked up in a big fight with the buyer, Delta Resources.

Delta is an Indian firm associated with Mukesh Ambani — the poster child of India’s global corporate expansionist ambitions and one of the richest men in the world.

Actual size
The issue at heart is a claim by Delta that the land it bought from NSSF — stringed from five adjacent lots — did not amount to the actual size that the giant manager of public retirement savings claims to have sold.

According to legal documents, NSSF negotiated to sell 1.9122 hectares of land for Sh1.375 billion, an offer price that translates to Sh719 million per hectare.

But Delta claims that the land actually measures 1.3554 hectares, which would imply that it should be valued at Sh975 million. This discrepancy of 0.5568 hectares amounts to an overpayment of Sh400 million, which is equivalent to the discount that Delta is demanding. This argument also implies that NSSF, which paid Sh800 million for that land in the 1990s overpaid by Sh418 million.

The land was combined from five parcels owned by NSSF in the same location. Though the land has not been sold, its ownership has been transferred and Delta has paid a 10 per cent deposit to an escrow account. A balance of Sh1, 237,500,000 that is also in an escrow account remains.

Delta is now demanding that the purchase price be reduced by Sh400, 460,222, which would reduce the purchase price to Sh837, 039,701. This case is now before an arbitration panel led by lawyer Dan Ameyo to decide how much price discount NSSF should offer Delta. The matter was before court on Monday before Lady Justice Jesse Lessit.

The dispute is likely to shed light on some of the shady dealings that NSSF entered into during the Kanu era and cemented a long documented legacy of official corruption. NSSF under the previous management has come under a harsh light for perpetrating corrupt deals in the property market.

Biggest deal
The car park lot sale was the country’s biggest deal so far this year, second only to the sale of the Grand regency Hotel to the Libyan Arab African Investment that went for Sh1.8 billion, which led to the resignation of Finance minister Amos Kimunya.

But controversy immediately dogged the deal, with accusations by the Central Organisation of Trade Unions (COTU) secretary general, Francis Atwoli that Delta Resources had not paid for the property and that it had not been sold.

The Business Daily has, however, now established that indeed the land was transferred to Delta Resources, but has hit snags that are a carryover from the Kanu regime and which are not only slowing down the conclusion of the sale of the property, but could make investors trying to buy prime properties from parastatals think twice and carry out extensive research and investigations before committing themselves to any transaction.

It is emerging that when the NSSF bought the property in the 1990s for Sh800 million, the measurements for the land were exaggerated and inflated by 0.5568 hectares or 1.3 acres.

Efforts by the Business Daily to get the file of the prior owners of the parcels of land who sold the property to NSSF with the inflated acreage were unsuccessful.

A dispute has now arisen between Delta Resources and the NSSF relating to the conflicting descriptions with regard to the actual acreage of the land. Delta Resources has already referred the dispute to arbitration to try and solve the issue amicably.

Documents filed in court show that last year, Delta Resources, through their law firm, Muriu Mungai & Co Advocates, wrote to the NSSF informing the NSSF that they were interested in purchasing the property for Sh1.372 billion.

After agreements, Delta Resources paid Sh137.2 million as a 10 per cent deposit of the proposed sale price. However, in January at the height of the political turmoil in Kenya, NSSF increased the purchase price to Sh1.375 billion.

Delta Resources was however keen on acquiring the property and agreed to the increase and forwarded an additional sum of Sh300, 000 for the 10 per cent deposit which had now increased from Sh1.372 billion to Sh1.375 billion.

The remaining balance was to be paid into a joint escrow account to be opened in the names of advocates for Delta Resources and the NSSF.

An escrow account is a form of account held by an agent such as a lawyer into which is deposited the documents and funds in a transfer of real property, including the money, a mortgage or deed of trust.

Court documents state that the NSSF took steps to complete the contract and executed the transfers and delivering them together with the original title deeds to Delta Resources and also opened an escrow account.

However trouble was brewing. According to the managing director of Delta Resources Ltd, one Neelish Shah, “upon undertaking a joint survey of the properties for purposes of pointing out the beacons to the parcels, it emerged that the acreage for one of the properties, LR No. 209/12287 which had been presented as measuring 0.197HA was significantly less in size by 0.5568HA,” he says documents filed in court.

Delta instructed their lawyers to send a letter to NSSF notifying them of the discrepancy and asked them to reduce original price by Sh400 million.

In response however, the law firm of Kipkenda Lilan & Co Advocates declined and instead asked Delta Resources to allow for the release of the full balance of the purchase price of Sh1.2375 billion that was held in the escrow account.

According to Delta, since they could not agree on the way forward and since the sale agreement had described arbitration as the method of resolving a dispute, they instructed their advocates to institute the arbitration proceedings which are currently on going.

However, NSSF went to court arguing that since Delta Resources had freely confirmed the contract and proceeded with the sale at the agreed purchase price of Sh1.375 billion with the full knowledge of the discrepancy in the size of the plot, the deal should go on to its conclusion.

In its court documents, the NSSF is alleging that Delta Resources perpetrated fraud by causing them to execute the transfer of the parcels of land and to deliver the transfer and title deeds acting on the faith that they would receive the balance of the purchase price on completion.

“Delta Resources Limited had no intention at all of completing the sale at the agreed purchase price of Sh1.375 billion, their intention was to unilaterally reduce the said purchase price by Sh400, 460,229 and to pay the National Social Security Fund Board of Trustees the sum of Sh837, 039,701 only out of the balance of Sh1, 237,500,000” says the NSSF in court documents.

Delta’s intention was to obtain title to the said properties first and deny the NSSF the right to receive and enjoy the benefit of the Sh400 million, alleges the NSSF.

On Monday however, Delta Resources obtained orders from Lady Justice Lessit to stop the court proceedings in the suit pending the hearing and determination of the application in the presence of both parties. The hearing of the suit will be on the June 30, 2008.

So far the two parties have also started proceedings with the arbitrator, Mr Ameyo, and the tribunal has already ruled that it has the jurisdiction to hear the dispute.

Cannot rescind transaction
Neelish Shah maintains that in any event, the transfer having executed and registered, the NSSF cannot validly rescind the transaction.

Currently, the City Council has sealed off the plot in dispute, which was used as a parking lot in the busy commercial district before the purchase was entered into. The NSSF is now arguing that has lost Sh4.4 million from the income they generated from charging for parking fees.

The NSSF argues that the legal costs for processing the transaction amount to Sh15 million and the securing the premises since March 1, 2008 amounts to Sh600, 000.

Once an undeveloped green zone, the land between Uhuru Highway and Loita Street has been the bastion of speculators who plan to build a number of top-end hotel and shopping malls, creating a “city within a city” around the area complete with modern shopping centres, casinos and other entertainment services.

For now, what holds one of the wealthiest men in the world from getting a foot hold of Kenya’s prime real estate, is Sh400, 000,000 worth of land that never existed.

Billow Kerrow: Executive must seek approval in economic matters

2008-07-24T00:00:00.000-07:00

After two miserable years of inertia by Rift Valley Railways, the concessionaire running services on the Kenya-Uganda railway, it has dawned on our leaders that the ‘marriage’ is on the rocks.

What went wrong, with all our highly qualified professionals in the public service who scrutinise such deals? What role did the World Bank play in pushing the Government into the concession, through its private sector arm, International Finance Corporation (IFC) who I understand were the transaction advisors?

The concession, a public-private partnership (PPP), was carried out hastily at the behest of donors and without Parliament’s involvement. When the Finance Minister stated in his 2005 Budget speech that the concession would be finalised by August of the same year, we warned that IFC was driving an unworkable deal. We cautioned that RVR was only interested in asset-stripping. No significant investment in the infrastructure was required of RVR in the first five years.

Time and again, it is the failure by the Executive to seek approval of the people, through their representatives as mandated by law, that disenfranchises us and makes us regret.

In modern democracies, matters of such economic import are tabled in Parliament through a sessional paper for approval by members. Weaknesses in procurement processes, terms of concession or sale, valuation of the enterprises and other parameters are thus subjected to healthy scrutiny. The impulse to do a quick deal or rent-seeking behaviour by political leaders mitigates against such a transparency and accountability.

In 2005, I raised concern about the challenges and risks inherent in our Government’s pursuit of PPPs without the appropriate policy and legal environment. Clearly, good governance requires that public affairs are managed well, in a participatory and measurable manner. Let us subject the processes leading to the sale of public assets to greater scrutiny to avoid pitfalls and outcries such as we have witnessed in recent weeks.

The writer is a former Shadow Finance Minister.

Michael N Nyamute: Why the Central Bank Rate has failed to set yield curve

2008-07-23T23:59:00.002-07:00

For many years now, the need for a reliable and nationally accepted yield curve has been debated over and over again. But it seems the formula for arriving at such a measure is yet to be found.

This has left financial industry players to each come up with their own yield curves to suit their needs. In most cases, these yield curves have their basis on the short term Treasury bill rate, which is an anormally, since you cannot use a short term rate to price long term securities.

A yield curve is a graphic representation of the relationship between yield and maturity of securities. The yield curve captures the relationship between yield and maturity at a certain moment in time. The shape of the curve changes over time.

To be representative, the instruments plotted on the yield curve must have common characteristics, such as same credit risk and same tax treatment.

Yield curves are used to benchmark rates and to compare yields of different securities, as well as to discover yield curve aberrations.

The shape of the yield curve is a closely followed parameter as it helps to give an idea of future interest rate change and economic activity. The three main types of yield curve shapes are: normal, inverted and flat (or humped). A normal yield curve is one†in which longer maturity†bonds have a higher yield compared to shorter-term†bonds due to the risks associated with time. An inverted yield curve is one in which the shorter-term yields are higher than the longer-term yields, which can be a sign of upcoming recession.

A flat (or humped) yield curve is one in which the shorter- and longer-term yields are very close to each other, which is also a predictor of an economic†transition. The slope of the yield curve is also seen as important: the greater the slope, the greater the gap between short- and long-term rates.

About two years ago, the Central Bank introduced the CBK Rate (CBR) with the aim of making it the industry benchmark rate. However, this has yet to catch on, especially at this time when inflation is rising and industry players are calling for higher interest rates. The CBR currently stands at 9 per cent, while inflation is at 29 per cent.

The Nairobi Stock Exchange (NSE), which lists most of the government bonds, as well as a few of the corporate ones, has also come with its own yield curve.

This situation calls for a consolidated and consultative approach by all stakeholders in the financial sector to come with the industry standard. This will give investors and players certainty and a reliable measure on which to base their investment decisions.

As things stand now, the CBR is lagging behind the market, which is moving the commercial rates upwards to catch up with inflation.

Make the most of military assistance

2008-07-23T23:59:00.001-07:00

Raila Odinga’s meeting yesterday with his British counterpart, Prime Minister Gordon Brown has come with a timely reminder of Kenya’s commitment to play a leading role in regional peace-keeping and peace-building.

This commitment ties in with stated Government policy to make greater use of the army not just in dealing with external threats, but also in acquiring and deploying expertise in various development initiatives.

Apart from the announcement of £2 million (Sh270 million) in new United Kingdom support for peace-building locally, Brown also pledged support for "the creation of an eastern Africa standby brigade to promote peace in the region".

This isn’t a new idea, but one for which this nation is peculiarly suited and which, given our recent history with terrorism and post-election violence, requires renewed commitment.

The African Union formally established the Eastern Brigade, which is part of the union’s standby force for peacekeeping missions, in July 2005. Known by the acronym Easbrig, it is expected to be operation-ready by 2010.

The brigade, one of five in Africa, will comprise four light infantry battalions and a military observer unit. While soldiers assigned to it will remain in their countries, the idea is to send peace-keeping forces into war zones within a month after the AU and United Nations’ approval. In the event of genocide, forces would be deployed within two weeks,

Such interventions could make the region safer. With weapons and terrorists finding their way into Kenya from nations like Somalia, they promise home-grown solutions to national security nightmares that have long troubled us.

Are we ready?

Easbrig’s first big challenge will be a ‘command post exercise’ — a type of training exercise —scheduled for November, which Uganda’s President Yoweri Museveni in March referred to as "a litmus test on the brigade’s level of readiness to undertake peace-keeping operations".

The brigade, Museveni pointed out, has a greater challenge facing it than the others on the continent. It is coming into shape at a time there is an unresolved border dispute between Eritrea and Ethiopia, anarchy in Somalia, genocide in Darfur, a fragile peace in Southern Sudan and threats of secession in the Comoros, among other crises.

However, it presents such an invaluable opportunity for gaining experience, technical know-how and improved military readiness, we must embrace it with the enthusiasm we have shown for UN operations.

Thirteen countries are slated for membership — Kenya, Uganda, Rwanda, Burundi, Ethiopia, Djibouti, Eritrea, Madagascar, Sudan, Comoros, Somalia, Mauritius and the Seychelles — but only ten are active.

Though relatively small, Kenya’s military is considered professional and experienced, placing them in a great position to benefit from the engagement.

Kenya is also host to a number of key Easbrig institutions, such as the secretariat, running out of the Defence Staff College in Nairobi, a logistics base, a coordinating mechanism and a ‘planning elements’ function. (The headquarters is in Addis Ababa). These have attracted significant investment in military assistance from the United States and the UK.

Capacity building

With a recent meeting of the Council of Ministers of Defence and Security in the region approving the inclusion of police and civilian elements in the standby brigade, the opportunities for capacity building in these areas are ripe for the taking.

There are a number of issues to be smoothed out before Eastern Africa can march as one army to trouble-spots in the region. These include questions of funding and know-how, manpower, internal conflicts, and political, diplomatic and military cohesion. However, our active participation in resolving these and ensuring Easbrig’s success promises great benefits in military reform that might not otherwise have been achieved.

Zimbabwe compromise better than Mugabe rule

2008-07-23T23:58:00.000-07:00

One day after the world’s biggest currency note (for 100 billion dollars) was launched, there was a coup in Zimbabwe.

It was just a coup of the diplomatic kind but a rare one for South Africa’s President Thabo Mbeki. He has opted to give Zimbabwe’s President Robert Mugabe the benefit of the doubt, even as the rest of the world would have preferred to have the 84-year-old freedom hero pilloried for crimes against humanity, electoral fraud and plunder.

Mbeki was in Harare to oversee the first face-to-face talks between Mugabe and MDC rival, Morgan Tsvangirai, since 1998, so they could sign a Memorandum of Understanding that would ultimately lead to a Government of National Unity. Such a deal ensures Mugabe’s regime escapes further punitive sanctions by Western nations and leaves long-suffering Zimbabweans breathing a sigh of relief.

The nation has lived through a violent electioneering period as well as an economic meltdown, with hyper-inflation at 2.2 million per cent. Many citizens fled in droves to South Africa where they found themselves under attack by xenophobic hordes.

Bitter covenant

With Mugabe seeming to have acknowledged that this is his last term in office, Zimbabweans can finally settle down to some nation building. This is, however, a bitter covenant because it could encourage other despots to cling on to power in the hope of signing just such power-sharing arrangements that perpetuate their stay in power.

We must stop this wave of madness

2008-07-23T23:57:00.000-07:00

With some 200 teenagers facing criminal charges over the unrest in secondary schools and tens of thousands sent home, discussion has raged on why the violence erupted and what could have been done to prevent it.

One other question that deserves scrutiny is whether education officials and school managers reacted quickly enough or appropriately to arrest matters.

We are persuaded they did not, judging from how long many symptoms of looming disorder were ignored or mishandled. This incompetence is to blame for the failure to prevent more strikes.

There have been numerous reports of mass hysteria at girls’ schools in the last year or two, a clear sign of high levels of anxiety often brought on or made worse by excessive strictness. These, bizarrely, are still considered ‘ghost attacks’ by many head teachers, leading to the underlying issues — such as excessive workloads, unreported bullying or discipline problems — going unaddressed.

Mass hysteria, where large groups of people suffer unexplained physical and psychological symptoms triggered by false beliefs, is best countered through prevention or early intervention. Psychologists say the most powerful tool is to have a calm authority figure give accurate and clear information on what is happening and remain visible and available to provide updates and reassurance.

WITCH-DOCTORS

In contrast, we have seen teachers and parents invite exorcists and witch-doctors to perform terrifying rituals in schools, all but guaranteeing catastrophic results. The slaughter of various farm animals by a witch-doctor at one school in Coast Province resulted in even more hysteria.

The admittedly sensational coverage in the media exacerbates the problem. Despite this confusion, the Ministry of Education is yet to launch a public campaign explaining hysteria or giving direction to parents and teachers on dealing with it.

This failure is also clear in dealing with the wave of violence that claimed 18-year-old Mohammed Abdi Noor’s life.

Media reports tell of protests or riots at more than 200 schools in the last three months. But it wasn’t until last Sunday, following Noor’s death at Upper Hill Secondary School on Friday, that Government’s first visible action came through: The creation of an emergency committee by Education Minister Sam Ongeri to look into the wave of violence.

As the committee met to prepare a brief for the minister by its Monday evening deadline, students from Pumwani, Aquinas, Lenana, Jamhuri and Uhuru secondary schools went on the rampage on copycat strikes. More students have since rioted.

Apart from recommendations on how to prevent strikes, the committee should present proposals on how to react to an unfolding sequence of copycat strikes so as to limit the threat to students lives and the damage to education infrastructure.

Following a spate of strikes in 2001, the Minister for Education, Science and Technology Henry Kosgey appointed a task-force led by Director of Education Naomi Wangai to investigate the causes of strikes. The task-force’s report makes useful recommendations, some of which have been implemented. However, it failed in one crucial way: It did not establish protocols for stopping a wave of strikes once it has started. We must have a way to stop the madness from spilling into every school.

DRY RUN

Isolated strikes and riots, even when violent, can be handled conventionally by calling in the police, isolating the trouble-makers and punishing them. They can also be prevented by monitoring students grievances.

But when it comes to waves of strikes, we must realise that many of the students and schools involved may have no real grievances. Copycat strikes in schools where there are few problems have surprised teachers and caused most of the damage.

To prevent them, education officials need a playbook of actions to take once news of other schools aflame breaks. Waiting and hoping for the best, as we have found out, doesn’t work.

L Muthoni Wanyeki: Darfur has a reason to cheer up

2008-07-22T07:27:00.000-07:00

The President of Sudan was last week indicted for genocide in Darfur by the Prosecutor of the International Criminal Court. It was a step up for the ICC — in terms of both naming what is happening in Darfur as genocide and demanding accountability for the same from the highest possible levels.

Sudan is not a signatory to the ICC. And it has consistently, as a result of international pressure, claimed that the Special Courts it established to handle human rights violations in Darfur are sufficient to justify its non-cooperation with the ICC through not handing over other Sudanese government officials implicated in the so-called Janjaweed attacks against Darfuri people.

This claim about the competency of the Special Courts ignores, of course, the fact that they operate under Sharia law. Meaning that, for example, survivors of rape need to produce four witnesses to bolster their statements — an obvious impossibility.

Thus the ICC’s frustration is understandable. All Africans of conscience should be similarly distressed. Despite the thin presence on the ground of the joint African Union and United Nations peacekeeping mission, forced displacement persists, together with other human rights violations (for which the Sudanese government is ultimately accountable).

The claims and counter-claims flying back and forth across the Chadian/Sudanese border complicate the safety and security of the refugees who managed to get across the border alive — as well as the attempts of humanitarian and relief organisations to service them. It is an untenable situation of untenable proportions.

Yet, the AU’s response to the indictment was muted, noting that it complicated the negotiations tenuously underway between the Sudanese government and armed groups active in Darfur.

Some African leaders even had the temerity to question why so many indictments are being made against Africans. The answer’s quite simple — until African leaders stop violating our human rights, Africans will seek recourse wherever they can.

THE ONLY AFRICANS WHO SEEM PLEASED ARE the now numerous Darfuri support groups that exist around the world and Sudanese human rights organisations as well as the broader human rights community.

It is not that the Sudanese government denies, at least not anymore, that gross and widespread human rights violations have taken place in Darfur — and continue to take place. So why is the rest of Africa and the Arab/Muslim world not able to put their feet down firmly in recognition of the Sudanese state’s primary responsibility to protect?

Sometimes justice must be compromised in the interests of peace. Kenyans are quite aware of this fact, given the ridiculous arguments put forward in the so-called “amnesty debate” — when what was legitimately at stake, while valid, had nothing to do with amnesty. But what Peter Tosh, Jamaican reggae maestro, proclaimed is, in fact, the case: “no justice, no peace.”

African governments may have learnt to leverage the international criminal justice system to force at least initial movement on the peace negotiations front. Sure, after that initial movement, life becomes more complicated — with the possibility of international criminal justice forcing retreats in negotiations.

But what is clear is that consequence is now assured. If not at home, then universally. And while individuals involved will invoke all manner of supposed causes to evade consequence, the threat of consequence now matter.

L. Muthoni Wanyeki is the Executive Director of the Kenya Human Rights Commission

Charles Onyango Obbo: The ‘problem’ with Bashir is that he’s a better suspect than Taylor

2008-07-22T07:26:00.000-07:00

There were two very different and significant developments in Eastern Africa in the last few days.

The International Criminal Court prosecutor Morenzo-Ocampo announced that he was moving to seek a warrant of arrest against Sudan’s President Omar al-Bashir for genocide and war crimes.

At about the same time in Rwanda, the country which faced one of the worst genocides of the 20th century in 1994 (nearly one million were killed), a law was passed to amend the constitution to provide that a former president cannot be prosecuted on charges for which he was not put on trial while in office.

The amendment means that serving heads of state can be prosecuted. That is quite unusual not just in Africa, but also in the world.

The ICC prosecutor’s move has been met with mostly opposition in Africa, with critics arguing it threatens the fragile peace in southern Sudan, and prospects for a negotiated settlement in Darfur, where nearly 200,000 people have been killed and other 2.5 million displaced by government troops and the Khartoum-backed militia, the Janjaweed.

But perhaps the Rwanda example demonstrates that things that are considered “impossible’, or deemed to be “unAfrican” can actually be achieved more easily than most people realise.

THE “PROBLEM” WITH THE THREATENED indictment of Bashir is not that it will scuttle peace in southern Sudan and progress in Darfur, but rather that he is considered a “better” war crimes suspect than former Liberian president Charles Taylor. Taylor became the first incumbent African president to be charged by the ICC with war crimes.

In 2003, he was forced to step down from power and eventually carted off to the Hague where his trial is currently taking place.

The same leaders who all descended upon Monrovia to ensure that Taylor left, are now mealy-mouthed about Bashir. Yet, while Taylor’s atrocities were informed by an element of common criminality and petty greed, Bashir’s in Darfur are partly a cold cynical calculation to ethnically cleanse parts of western Sudan to make possible oil exploration unfettered by local political and cultural claims over the fields.

True, in the Sudan context, Bashir is a moderate of sorts, and if he is weakened by the threat of ICC indictment, it might make it easier for hardliners to outmanouvre him.

Even if that happens, it might not all be a disaster. It’s probably better to have a regular leadership change that allows hardliners too to come to power, than have incompetent moderates rule until they are senile.

Secondly, Bashir has probably reached the limits of his ability to deliver on commitments made to the south, or to make progress on Darfur. A hardliner might be able to move matters forward because he would have more credibility with the forces now opposed to compromise.

YET AGAIN, THE AFRICAN UNION ALSO has positioned itself foolishly. An organisation that has been pressing the international community to invest more in the Darfur peacekeeping effort, and to send a UN mission to Somalia does not help its cause when it rallies to shield Bashir from Morenzo-Ocampo’s onslaught.

China, perhaps the leading global defender of Bashir — and rogue Zimbabwe president Robert Mugabe’s — government’s against international censure, is also putting its future relations in Africa at risk because of a narrow focus on the oil concessions it has won in Sudan.

China is worried about losing access to oil and other resources in Africa to feed its booming economy, it’s unwilling to risk that by seeming critical of brutal regimes in countries from which it buys raw materials. So it has rushed to try and seek a UN vote halting charges on Bashir.

China doesn’t need lessons in the folly of such an approach. It should just take a look at the damage a similar approach has brought upon the USA, and how much of its prestige — and influence — it has squandered in the process.

Charles Onyango-Obbo is Nation Media Group’s managing editor for convergence and new products.

Abdulsamad Ali: 2008 tourism prospects good despite hard times

2008-07-22T07:25:00.000-07:00

International tourist arrivals grew by five per cent between January and April compared with the same period last year.

Prospects for international tourism, however, remain positive, says the June edition of the United Nations World Tourism Barometer.

The overall economic climate has deteriorated since the last quarter of 2007, adds the report, reducing consumer confidence and putting pressure on household spending and travel budgets.

The UN World Tourism Organisation expects demand to grow, but at a slower pace over the remainder of the year.

This rosy scenario however fades in the case of Kenya, especially following post-election violence early this year that saw the sector take a tumble it is yet to recover from. Indeed, the numbers are expected to dip from the 2,001,034 recorded last year.

According to Kenya Tourism Board communications manager Rose Kwena efforts are being made to revive the sector.

So far, the United States and France are leading the international community in urging their countrymen to continue visiting Kenya.

France has gone a step further. It has proposed memorandum of understanding between its Ministry of Tourism and Kenya’s that will examine hotel classification, training and capacity building and ecotourism.

The extent of any tourism recovery will depend on how the economy evolves and consumers react, both of which are directly interrelated to oil and food prices.

“We remain positive about the overall industry perspectives in 2008,” said UNWTO secretary-general Francesco Frangialli.

All UNWTO sub-regions posted positive results in the first months of the year. Growth was fastest in the Middle East, North-East and South Asia, and Central and South America.

A variety of destination countries reported double-digit growth rates in the first three to five months of 2008. In Asia and the Pacific, growth was reported in China, Japan, Republic of Korea, Macao (China), Cambodia, Indonesia, Vietnam, Fiji, India and Nepal; in the Americas — the US, Cuba, Jamaica, Costa Rica, El Salvador, Panama, Chile, Peru and Uruguay; in Europe — Sweden, Bulgaria, Latvia, Lithuania, Israel, Malta, Montenegro and Turkey; and in Africa and the Middle East: Bahrain, Egypt and Morocco.

The current economic imbalances, in particular the rising energy prices, are very likely to influence tourism spending. But specific demand shifts — determined by disposable income, travel budgets and confidence — will vary from country to country, and from region to region, depending on their local economies, labour markets and consumer confidence.

UNWTO says on the whole, though consumer confidence indices show an increasing degree of uncertainty, international tourism has proven to be resilient in similar circumstances in the past and able to cope with various types of shocks, including security threats, geopolitical tensions as well as natural and man-made crises.

Accounting for these factors, coupled with a slower but still positive economic growth, international tourism is as yet expected to keep growing at a solid pace in the mid-term, broadly in line with UNWTO’s Tourism 2020 Vision forecast long-term growth rate of about four per cent.

Despite boasting some of the world’s leading tourist attractions, tourism in the East African region has not achieved the desired effects.

The executive director of the Tanzania Investment Centre, Emmanuel ole Naiko said recently that East African countries still lag behind, what with poor service provision, prohibitive costs of doing business, immigration barriers and poor infrastructure.

A total of 3,310,065 tourists visited the region last year. Kenya got 2,001,034, Tanzania 719,031 while Rwanda recorded 40,000.

Tourism in Burundi is also picking up significantly, though statistics on last year’s tourist arrivals are yet to be made public. The country recorded 133,000 and 148,000 arrivals in 2004 and 2005 respectively.

While Tanzania is aiming to hit a million tourist arrivals in 2010, Rwanda is adjusting itself to record 50,000 tourists in 2008. If Tanzania’s target succeeds, the industry would add an extra $1.7 billion in 2010.

Mark Kapchanga: Crown Berger sets eyes on Rwanda market with $0.5m plant

2008-07-22T07:24:00.000-07:00

Paint maker Crown Berger Kenya Ltd says it will bank on the goodwill of its founding Chairman Haider Ramji, who has roots in Rwanda, to venture into the country.

Mr Ramji was a well-known industrialist in the country before he fled after the 1994 genocide.

Rakesh Rao, the Group’s chief executive officer, says they have been experiencing logistical problems moving their products to the Rwandan market. According to Mr Rao, the new establishment in Rwanda will curb border checks that usually delay the distribution of products to their customers.

“Transportation of products from our Ugandan plant to Rwanda was expensive and customers would complain of delays in processing of their orders. The new plant will solve the problem.”

Crown Berger’s expansion to Rwanda comes a year after the company opened a new plant in Uganda that cost Ksh126 million ($2 million). Company officials say its sales have since doubled.

In the recent past, many Kenyan companies have ventured into the Rwandan market. Analysts say this has been prompted by the country’s political stability and relative calm after the genocide.

The company is expected to spend Ksh31 million ($500,000) to put up the new plant in Rwanda. Production costs from the new venture are expected to be 8-10 per cent more than what the company incurs in Kenya.

Crown Berger’s venture in Rwanda, according to the management, is in tandem with its regional expansion strategy that now targets Southern Sudan, eastern Congo and Tanzania to grow its sales and profits.
Mr Rao says a plan to exploit the Tanzanian paint market is underway despite tough competition in the country. The company intends to enter into a joint venture with a local market player.

Meanwhile, paint consumers will in the next few months feel the pain of paint and its products as the company announced a possibility of increasing its products’ prices by 10 per cent.

The price change is expected to be effective in September this year. Increased costs of inputs, the company says, has compelled it to increase the prices.

Mark Kapchanga: Wattle tree farming fizzling out of Kenya

2008-07-22T07:23:00.000-07:00

Once a vibrant and profitable economic activity that earned Kenya Ksh5.8 billion ($92 million) annually from local and international markets, wattle tree farming now faces virtual collapse.

Farmers point a finger at the government, saying it has abandoned them to the extent that they lack even basic farm inputs despite growing demand for the commodity in the world market.

Wattle tree farming is practised mainly in the Rift Valley and central provinces.

The farmers say they also lack extension and financial services that might help them boost a once Kenya’s economic pillar.

East African Tanning Extract Company Ltd (Eatec) used to cultivate wattle trees in its own plantations but in the late 1990s, it divested from the country. It is alleged that the company's investors felt the business was not as lucrative as they had anticipated. They instead sold their tree plantations to individual farmers, some of whom uprooted them. Eventually, they shifted to South Africa where they established hotel and mining businesses.

Initially, Eatec invested heavily in tree farming by establishing huge chunks of land where wattle tree plantations were set up. It had over 18,000 hectares of land, out of which 8,300ha were exclusively for wattle tree farming.

Farmers in Eldoret, Keiyo and Nandi also invested heavily in the sector due to high returns and demand for Kenya’s wattle barks by the global market.

With the divestiture, small-scale wattle farmers whose tannin production averaged 3,000 tonnes per year were forced to turn to burning of charcoal while others opted to sell their trees, at cheap prices, to a local company that makes electricity poles.

But this pales in comparison to what they would reap were Eatec around. First, tree barks would be harvested and sold lucratively. Secondly, the trees whose barks had been harvested would be cut and charcoal burnt out of them at Eatec’s charcoal kiln.

Moses arap Koech, a wattle tree farmer in Keiyo, says: “The company used to pay Ksh850 ($13) per tonne of green bark or Ksh1,100 ($17) to KSh1,300 ($20) per tonne of dry bark. Some large-scale farmers used to export their dry bark to Asian countries especially India.”

Mr Koech says the current situation in the country is difficult for the sector to thrive since it lacks both local and international marketing.

With the current robust competition from other world producers such as South Africa, Tanzania and Zimbabwe, Mr Koech says the government, through the Ministry of Agriculture, should step in with expertise and inputs.

“Government intervention will also cushion us (farmers) from competition from synthetic tanning extracts.”

Kenya Tanning Extractors Company (KTEC) in Thika remains the only company in the region purchasing wattle tree barks from farmers. Unlike Eatec, which had established its own plantations, KTEC only purchases tree barks from farmers.

KTEC initially concentrated its activities in Central Kenya, but it has recently extended its reach to the North Rift due to scarcity of tree barks. Central Kenya has been cultivating the trees since 1898.

Records at the Kenya National Archives show that local administrators encouraged farmers to plant the trees. Their aim was to reduce pressure on the indigenous forest after the demarcation of the Forest Reserves on the Eastern slopes of Aberdares between 1900 and 1910. With the establishment of extraction factories in the 1930s in Limuru and Thika, farmers’ appetite for commercial wattle tree farming developed, leading to more than double production of tree barks in 1935.

Commercial tree farming spread fast to other parts of the country when world market prices for tanning extracts rose between 1921 and 1929 and in the late 1940s.

In spite of the world market’s growing appetite for these trees, whose barks are credited for high tanning content, Kenya’s production has dwindled over the past decades.

“Although Kenya has about 62,800 hectares of mangroves along the Coast, which have potential for bark tanning production, this potential has neither been explored nor exploited. Similarly the potential for tanning production from the arid and semi-arid based acacias has neither been explored nor exploited. In Sudan, the acacia bark is used in cottage leather tannin industries,” said Mr Koech.

According to a former employee of Eatec, John Lelei, “The main problem facing the tanning industry is access to raw materials. Land for plantations is not readily available, and it is difficult to persuade individual farmers to plant more wattle trees.”

Mr Lelei challenges Kenya to ape South Africa, whose commercial wattle tree plantation is over 130,000 hectares grown by some 2,700 farmers.

South Africa’s production has remained high over the years due to what Mr Lelei says is its “organized co-operative society that serves as a centre for research, marketing and financing” for wattle tree farmers. According to him, the country has optimally exploited the recent economic transformation of China and India, whose fashion industry demanded leather goods. Currently, almost 80 per cent of wattle bark extract processed from the bark in South Africa is supplied to tanning industries worldwide, with the rest being modified to produce plywood and particleboard resins and other lesser products.

John Mbaria: MPs want govt to order lake access routes opened

2008-07-22T07:22:00.000-07:00

The government should order flower farms, ranchers, tourist companies and other landowners who have blocked access routes to Lake Naivasha to open them. This is the recommendation of a Kenyan parliamentary committee that toured the lake last week. Currently, only one of the 19 public access routes to the lake is open.

Led by the Member of Parliament for Kaloleni, Samuel Kazungu, the Parliamentary Committee on Agriculture, Land and Natural resources not only recommended the opening up of the 18 routes to the lake, but also said that their width should be retained as per the provisions of the law.

The MPs were on a fact-finding mission last week to assess the conditions of lakes lying on the floor of the Great Rift Valley, namely lakes Naivasha, Nakuru, Baringo and Bogoria.

If implemented, the recommendation on Lake Naivasha’s access routes is likely to give thousands of local people access to the lake’s water, fish and other resources. But it is also likely to upset “power relations” around the lake particularly because landowners operating under the auspices of the Lake Naivasha Riparian Association have always claimed that they have long standing legal agreement with successive governments since colonial times to manage the riparian land (land that is immediately next to the water mark).

Ordinarily, such land belongs to the state.

Now, the relevant landowners, most of who are members of the riparian association, have come out fighting. “Most of the so-called public access routes are not on the Survey of Kenya maps,” said the chairman of the association, Mark Kariuki, who added that landowners are ready to open up the routes if it is legally proved that they exist.

The six-person Parliamentary Committee also ordered demolished or closure of two buildings. One of them is a 10-bedroomed house within the giant Sher Karuturi flower farm that is allegedly constructed too close to the lake’s shoreline, while the other is the Drifters Hotel that floats on the lake.

According to a press statement, the MPs wondered how the hotel came to be constructed inside the lake and how the proprietor, Mr Kariuki — the chairman of the riparian association — disposes of sewage, solid waste and wastewater.

But Mr Kariuki denied that his hotel was polluting the lake. While pointing out that he bought the hotel recently, Mr Kariuki said: “We have done an environmental impact assessment on the restaurant which has been approved by the National Environmental Management Authority (Nema).”

“If the MPs were really on a fact-finding mission, then they ought to find relevant facts and approvals from Nema.” Further, Mr Kariuki said that he has put up a proper waste disposal system for the hotel, which involved dumping solid waste away from the lake.

The relatively shallow Lake Naivasha is situated between the Moi South Lake Road, Moi North Lake Road and several high-density residential areas — including Karagita and Naivasha town. Besides being the only fresh-water lake in the Rift Valley, among its other distinguishing characteristics are a river-line flood plain, a crater lake and a delta — all perched at 1,800 metres above sea level.

From the lake, one can see the Aberdare ranges, the Mau escarpment and its expansive catchment area estimated to be 3,000 square kilometers. The lake is recharged with fresh — but increasingly polluted — water from Malewa and Gilgil rivers. The endangered Ramsar wetland is dominated by papyrus, acacia and a floating mass of water hyacinth that shifts with the direction of the wind.

According to Kenyan law, the lake’s water and the riparian land are the property of the state, which it holds in trust for all citizens. As one moves from the riparian land, the surrounding land is mainly held by private individuals and companies, although some is held by the state and the Naivasha municipal council.

Ideally, the management of the lake’s resources is supposed to be guided by a series of legislation. But the Lake Naivasha Riparian Association — which was formed in 1927 — managed to secure an agreement with the then British colonial government in 1931 that allowed it to manage the riparian land, which it has done ever since.

This scenario has courted considerable controversy and sometimes acrimonious debates between local groups of livestock owners, fisher folk, smallholder farmers and residents of Naivasha town on one hand and the association on the other hand. The former claims that the latter behave as if they own the riparian land.

However this has been disputed by the association, which says that it is only managing the land to prevent the destruction of papyrus and other shoreline vegetation that is necessary for the maintenance of the lake’s natural cleaning mechanism. The association has also accused both the Naivasha county council and the people living on the banks of Malewa River, of polluting both the river and the lake.

Over the years, there have been attempts to harmonise the conflicting interests and contrasting positions on the lake’s management. For instance, there now exists the Lake Naivasha Management Plan that was gazetted in October 2004 by the then Environment and Natural Resources minister, Kalonzo Musyoka.

Besides spelling out how the lake’s resources ought to be managed, the plan was also meant to ensure that adverse effects on the lake’s ecosystem are minimised.

Apart from this, the management plan requires developers to come up with environmental impact assessments and asks water users to install meters to regulate its use. “The plan shall regulate and control water use by instituting metering for water abstractions as provided for in the water permits,” reads the plan in part.

The plan also gave livestock owners limited access to the lake but prohibited them from grazing animals on the riparian land.

However, a forum composed of farmers’ organisations, animal welfare groups, pastoralists, consumer networks, civil society organisations, traders and private individuals came up last week to present the Parliamentary Committee with a memorandum that opposed the implementation of the management plan.

Operating under the auspices of the Lake Naivasha Basin Stakeholders Forum, the group has denounced the management plan on the grounds that it has not addressed the needs of the community and that local people were not consulted when it was being drafted.

However, this has been denied by Mr Kariuki who said that most of the groups of farmers, pastoralists and even government bodies were consulted and participated in the plan-preparation process. “The process of coming up with the management plan was driven by communities,” he said.

Nevertheless, the forum has come up with a list of community issues, which it says have been neglected by the management plan. This includes local people’s access to the water, pollution of the lake and constituent rivers, and encroachment and destruction of the lake’s catchment areas. They also decry the destruction of the riparian vegetation cover (particularly papyrus and indigenous trees) to pave way for development.

“Our concerns have not been taken into consideration and this has continued to put pressure on the relationship between the few minority “who own” the lake and other stakeholders,” reads the forum’s memorandum.

It goes on: “We are therefore opposed, in the strongest terms possible, the proposed management plan which was not consultative (but) is a boardroom product of a few individuals for short term gains.”

Lenders set new conditions for troubled RVR

2008-07-22T07:21:00.000-07:00

Two key international financial institutions supporting the Kenya-Uganda Railway concession have said they would not disburse funds to Rift Valley Railways until new conditions are met.

Sources have told The EastAfrican that one of the key sponsors of the concession — the International Finance Corporation — the World Bank’s private sector-lending window, has indicated that it will not give RVR any money until RVR concludes ongoing discussions on a new management and financial restructuring.

Another key lender to the concession — KFW of Germany — has also indicated that it will not give any money to RVR until it is satisfies all “conditions precedent” to the agreement, including conclusion of a partial risk guarantee and reimbursement of invoiced fees and expenses of the counsel which the lender retained for the transaction.

RVR is presently holding discussions with two international companies on a rescue plan that includes transfer of management from the current one led by one of the shareholders — the Sheltam Group of South Africa.

The first is a consortium led by Australian company Toll Holdings Ltd, which also includes a UK-based equity fund PME Africa Infrastructure Opportunities Plc (PME).

The second, is a consortium led by Optima Management Ltd of the UK, said to be linked to Magadi Soda.

Faced with financial problems, the board of RVR gave the mandate to one of its shareholders — the Australian company, Bobcock &Brown Ltd — the mandate to invite international operators with the capacity to bring in new equity and management to the company.

It is this process that led to the invitation of two international players — first Toll Holdings Ltd and then Optima Management of the UK.

Included in Toll Holdings is PME Africa Infrastructure Opportunities.

Consequently, the RVR board allowed these two players two consortia to run due diligence on RVR in May.

Written proposals were submitted on May 30 to the RVR board. On June 3, both Toll and Optima gave presentations to RVR’s shareholders and lenders.

Sources have told The EastAfrican that the IFC has since expressed its own views about the strengths of the two companies.

It is understood that the World Bank institution has made the point that while it has no doubts about Toll’s capabilities, it was concerned that the Australians do not have any experience in Africa.

The IFC has also reportedly argued that the proposal by Toll provides for very little in terms of injection of new funds.

According to the proposal by the Australians, they are to invest only $10 million. IFC is reportedly concerned that Toll merely wants to play the role of a manager of RVR.

Then there is the issue of what the IFC sees as the incestuous relationship between PME and South African group, Sheltham, that is currently managing RVR.

Apparently, IFC believes that PME is a related party to the Sheltham group, implying that RVR was likely to support their bid to take over management as opposed to the Optima consortium.

With regard to the proposal by Optima, IFC is said to have indicated that it was impressed by proposal by the company to come up with a management team that will mix local experience and international rail expertise as well as some partners having a long-established presence in Kenya.

Consequently, IFC has asked the shareholders of RVR to come up with a transparent process of selecting between the Toll Consortium and Optima.

The IFC has recommended the creation of an informal steering committee composed of shareholders, lenders and the governments of Uganda and Kenya to guide the process of choosing between the Australian-led consortium and Optima.

Sheltam Ltd of South Africa is the largest shareholder of RVR, owning 35 per cent of the shares. Others are the Transcentury Group, Prime Fuels and Mirambo Ltd, Centum Investment Company Ltd and Babcock and Brown.

Apparently some of the shareholders have not fully subscribed their equity. Consequently, IFC has recommended that the best option for RVR at the moment is for the shareholders to put in the remaining amounts currently standing at $7 million.

The calculation is that this amount will be enough to compensate for the disbursement that was expected from KFW.

IFC has also reportedly said that it would be willing, subject to an agreement of a new management, to disburse $2.7 million.

The assumption is that with the approximately $10 million, RVR will be able to continue operations for the next few months while a negotiated solution is being sought on the basis of the two proposals from either the Toll consortium or Optima.

Until recently, top Kenyan government officials appeared to be leaning towards the Australian company.

But the local shareholders of RVR — Transcentury Ltd and Centum Ltd — prefer to deal with the Magadi Soda consortium while Sheltham Ltd is leaning towards the Australians.

During one of the recent meetings between shareholders and lenders, eyebrows were raised when a representative of Babcock and Brown made disparaging comments about Optima.

The local shareholders of RVR believe that the two proposals on the table have strengths and should both be given consideration.

However, how events proceed will depend on how the government responds to RVR’s deteriorating performance.

Opinion is now unanimous in government that the concession has performed way below expectations.

Indeed, key elements within the government are now more inclined towards conducting a comprehensive review of the performance of the concession with a view to terminating the contract altogether.

Already, the Office of the Prime Minister, working in conjunction with the Ministry of Transport, have released the terms of reference for the review of the performance of RVR under the concession which is to be completed within 45 days.

Meanwhile, RVR has announced the entry into the company’s share register of Mirambo Holdings Ltd and Prime Fuels Ltd as shareholders.

The two, who were among the original shareholders of the company, have been engaged in a long-running ownership dispute with Sheltam Ltd over the company.

RVR said in the statement that the shareholders of the company had mandated the board to asses the present funding and management structure of the group, and to make appropriate recommendations by July 28, an obvious reference to the talks going on with Toll Holdings.

The Kenya Railways handed over all operational assets to RVR on November 1, 2006 for a period of 25 years for freight, and five years for passenger services.

Under the agreement, performance is to be measured in two ways — freight volume targets and minimum investment.

The freight volume target is measured annually, but for the initial period, the performance targets is to be measured for the period up to June 2009.

The agreement specifies a minimum investment of $5 million per annum for the first five years.

Julius Barigaba: Uganda cedes stake in oil pipeline to Tamoil of Libya, local investors

2008-07-22T07:19:00.000-07:00

There has been a new twist in the control and ownership of the long anticipated Eldoret-Kampala oil pipeline, with sources confirming to The EastAfrican that contrary to the original plan, Uganda will now only take half of 24.5 per cent stake it was supposed to take in the venture.

Long accused of dragging its feet and reluctance to meet its part of the bargain in the project, it has emerged that Kampala is now only ready to finance land acquisition for the project.

But Energy minister Daudi Migereko who declined to comment on government’s commitment to its equity obligations told The EastAfrican last week that Kampala maintains a “carried interest” in the 358km pipeline project despite the budget providing for mainly land acquisition this financial year.

“We have decided that the project will be developed by the private investor but the government will maintain a carried interest,” said Mr Migereko.

This means that the private investor takes up the remaining 12.5 per cent of Kampala’s stake by providing the financing that the government was meant to commit in the joint venture project between itself, the government of Kenya and the private investor. Sources also indicate that Kampala has negotiated for a position in which the investor would recover his investment injected in the project on behalf of Kampala by claiming the profits that would accrue to Uganda’s stake.

Libyan oil giant Tamoil won the tender through its affiliate Tamoil East Africa, to build, own and operate the pipeline in 2006 in a joint venture between itself and the governments of Uganda and Kenya. Estimated to swallow upwards of $80 million, the project requires Uganda and Kenya governments to commit $5.8 million each for their stake, while the private investor foots the rest 70 per cent borrowing against 30 per cent cash financing.

Landlocked Uganda spends millions of dollars transporting oil products from Mombasa mainly and to a small extent, from Dar es Salaam. A plan to reduce the burden of Uganda — and later other hinterland countries of Rwanda, Burundi and eastern Congo which would extend the pipeline downstream — was drawn as an alternative to the costly mode of transportation along the northern corridor.

In the project’s original plan, the private investor was to own 51 per cent of the pipeline before transferring it after a period of 20 years to the two governments whose 49 per cent stake was split right through the middle.
This meant that both governments were to commit equal resources and make the same decisions regarding tendering, investment, development and use of the pipeline. Indeed the project’s implementation is co-chaired by the Energy permanent secretaries of both Kenya and Uganda, Patrick Nyoike and Fred Kabagambe-Kaliisa respectively.

However, there are worries that Kampala is ceding its stake in a strategic infrastructure project for no clear reasons to unnamed persons who are masking behind Tamoil, upping its stake. Clearly $5.8 million is a worthwhile investment in a project that would guarantee the country a cheaper option to costly fuel transportation.

The national budget framework paper which spelt out the country’s expenditure priorities for 2008/09 said among other things, that Uganda faces the challenge of meeting its equity contribution as it still has a shortfall of Ush8.16 billion ($4.6 million). This means that Uganda has only $1.2 million available, but the paper raises more eyebrows, saying the ministry also requires Ush250 million ($142,857) to meet its other obligations under the various project agreements on pipeline promotion and development.

The budget goes ahead to state that funding priorities in the Energy ministry to the tune of Ush449.34 billion ($256 million) in the current financial year are energy planning, management and infrastructure development — which take up 66 per cent of the ministry’s budget, while petroleum supply, infrastructure and regulation — under which the pipeline falls — is left almost bare, with a paltry Ush870 million ($497,142), part of which will now finance compensation of land owners.

The pipeline, which has endured several postponements since it was awarded to Tamoil in January 2007, has not been short of controversy. First, the governments of Kenya and Uganda raised queries over the contractor’s capacity to finance the project, but later, the government of Uganda started to send signals that it was pulling out of its 24.5 per cent ownership in the project arguing that it was not interested in the pipeline, but rather, its contents.

Then in May this year, the Energy ministry again said construction would not start due to delays that were blamed on Kenya, which had got consumed in fixing emergencies occasioned by the post-election crisis that hit the country following the December 27 elections.

Current chair of the Natural Resources Committee of parliament Winnie Matsiko told The EastAfrican that the committee was equally in the dark about the project and would meet ministry officials this week to get an update on the situation. But the committee’s former chair Emmanuel Dombo was even more unequivocal: “This project is long over due. My committee raised all these concerns and as all these delays go on, the heavy trucks that transport oil products are destroying our roads.”

Records of the Natural Resources Committee indicate that just last year, it warned the ministry of Energy to negotiate carefully to guard against future losses and weigh the would be effect of the country’s withdrawal from a strategic project such as the oil pipeline.

Mr Dombo also said that the land acquisition process itself is already tinged with controversy. The legislator said that as late as June this year, his committee had been approached by complainants who said they had not been compensated and demanded attention of the minister, an issue that was referred to Mr Migereko’s office.

It is understood however that Kampala which has often been accused of dragging its feet on the project is now keen to expedite the construction, starting with the inland terminal depot. “We are looking to get some work started on the Ugandan side. We are looking at the main depot terminal, to see if it is possible to expedite that component of the project,” a source at the ministry told The EastAfrican.

While this goes on, the country’s energy bill is growing. Thermal power generating firm Aggreko has applied to the electricity regulatory authority for an upward tariff adjustment due to increased cost of oil. The firm says power generation has become more costly not just because of hikes in global oil prices, but a lack of cheaper transportation. Diesel is transported by tankers from Mombasa to Kampala.

At that, railway concessionaire Rift Valley Railways has issued notice to increase its freight charges effective August, also citing the spiralling fuel prices. These two issues will clearly rub salt into the wounds of Uganda’s energy problems.

The Eldoret-Kampala pipeline is expected to significantly reduce transportation costs of oil products by about 40-50 per cent, which translates into $20 per cubic metre of oil instead of the current tariff of $35-$40 per 1,000 litres.

Early this year, Rwanda came aboard the pipeline extension plans to Kigali.

Mau forest stands for life, our future

2008-07-22T07:18:00.000-07:00

THE 400,000-HECTARE MAU FOREST COMPLEX remains by far the most important water tower in the region. The source of at least 12 rivers, the complex is the bedrock of economic activity in Western Kenya and the Lake Victoria region in general.

The continued degradation of this great ecosystem, through such activities as illegal logging, excisions and encroachments, will have far-reaching environmental and economic implications. It is now estimated that up to a quarter of the complex has been destroyed. This is a situation that must not be allowed to go on.

Just last week, in an indication of what could happen if the destruction continues, the Kenyan government cancelled the commissioning of the 60MW Sondu Miriu hydroelectricity project because the water levels in the holding dam were insufficient. The river that feeds the $185 million project originates from the forest.

Elsewhere, reports have emerged that the rivers flowing from the complex to such wildlife sanctuaries as Lake Nakuru and the Mara-Serengeti triangle are drying up, putting the region’s multi-billion dollar tourism industry at risk. Also being affected is agriculture and the domestic water supply situation in the region.

Already, the United Nations Environmental Programme estimates that Kenya is losing nearly $300 million annually due to the degradation of the Mau and other forests. Significantly, since many of its rivers flow into Lake Victoria, destruction of the forest complex will have implications beyond Kenya into the Nile basin.

In the circumstances, it is imperative that the basic resolutions of the inter-ministerial consultative committee, which met with various stakeholders under the chairmanship of Prime Minister Raila Odinga, be implemented without delay.

These include the relocation of the estimated 3,000 families who have settled in the complex by October 30, as well as the demarcation and fencing of the forest complex.

It is unfortunate, in the event, that sections of Kenya’s ever-squabbling political class seem intent to scuttle the resolutions of the inter-ministerial committee. The politicians must realise that the Mau forest is too important to the people of East Africa to be sacrificed for partisan interests.

If it is allowed to die, human deaths will follow.

New team needed to probe school chaos

2008-07-22T07:11:00.000-07:00

Education minister Sam Ongeri has predictably set up a committee to deal with the copy-cat strikes in schools. He was jolted into action after the weekend incident at Nairobi’s Upper Hill School, where rioting students set a dormitory ablaze, killing one student and injuring others.

For good measure, the police Monday swung into action and arrested 90 students suspected of fanning the chaos. All along, the Education ministry has kept quiet as schools burnt.

In between, there have been many theories about the real cause of the school chaos. Unfortunately, some of the diagnoses have been rather simplistic. Perhaps, it is that simplistic approach that prompted Prof Ongeri to set up the committee comprising of education officials to investigate themselves. Ideally, what was required was an independent team, in fact, a presidential commission, to get to the bottom of the matter.

The main problem in schools and for that matter, the entire education sector, is poor governance. Most educational institutions are poorly managed. Many headteachers and education administrators are incompetent; funds and resources are misused; facilities are inadequate and supervision is irregular.

Patronage and impunity are the order of the day. For example, due to poor governance, the Kenya National Examinations Council was let off the hook despite bungling last year’s Form Four exams. Although little money has been sent to schools, education officials continue to mislead the public that they are providing adequate funds. The composition of boards of governors and parents-teachers associations is saddled with corruption. Add these to other factors such as poor parenting, drug abuse and an overloaded curriculum, and the stage is set for chaos.

The Ongeri committee should be disbanded and an independent one comprising respected professionals, administrators and private sector players be named to critically examine the mess in education.

Otherwise, the ad hoc way in which the education sector is managed is a recipe for chaos.

Jackson Mwalulu: Mau saga proves Kenyans do not care about environment

2008-07-22T07:10:00.000-07:00

THOSE RIOTING OVER THE Government’s plan to comprehensively restore the Mau complex should be understood within the context of the typical Kenyan’s contempt for environmental conservation.

This contempt is underlined by the fact that one’s transfer or appointment to the Ministry of Environment is treated as demeaning to the individual and the community from which he or she hails. This explains why since independence, no Environment minister has left a mark in that docket.

In the 1980s and 1990s, we would roar with laughter at President Moi’s vilification of Prof Wangari Maathai’s environmental conservation efforts as the antics of a mad woman.

Looking back, this collective indifference to Mother Nature is all the regime needed to wage a scorched earth war against our natural heritage, with the Karura Forest and the Mau as the most outstanding examples.

THE VENOM WITH WHICH SOME Rift Valley MPs greeted Prime Minister Raila Odinga’s putting his foot down over the Mau is not surprising.

Indeed, Raila should take the legislators’ threat to withhold their support for him and ODM seriously because, to their minds, their political here and now matters more than the country’s survival.

But this proposition could be wrong. The MPs, like the majority of Kenyans, honestly cannot see what is wrong with their kinsmen/women exploiting one of the most fertile agricultural lands in the country. Looked at from this prism, Raila is an agent of hostile forces on an evil mission to “finish” their people.

The argument that the Mau settlers hold title deeds to their pieces of land is most incongruous because it cynically ignores the bigger question of the survival of an entire region, with Kenya and Tanzania as the most immediate casualties.

Still, since these Kenyans are merely victims of political myopia, they should be handled with care. They should be offered attractive incentives, including commensurate financial compensation.

To begin to address the question of environmental concerns, a deliberate, continuous public education on the virtues of preserving the environment should be carried out throughout the country to sensitise Kenyans on the link between famine, disease, poverty and natural disasters and environmental degradation.

The need for an integrated governmental approach here cannot be gainsaid. Mr Odinga cannot leave a better legacy than leading Kenyans into a safer environment. This job should not be hard for the Premier given that he has on his side two result-loving ministers – Mr John Michuki (Environment) and Dr Noah Wekesa (Forestry and Wildlife).

Environmental care has assumed central importance globally, and governments are taking the lead. Kenya can borrow from some of the best examples internationally, one of them being China.

Though pilloried as the world’s chief polluter mainly due to rapid industrialisation and population pressure, China, after perennial disastrous floods and famines, has adopted policies which aim to restore its environment.

The country has invested billions in two programmes named China Natural Forest Conservation and Grain to Green. The former is aimed at rectifying the damage caused by years of unbridled logging which has led to soil erosion. It bans logging and replaces forests through a plethora of incentives to forest enterprises.

The Grain to Green approach works to convert crop land on steep slopes to forests and grasslands by providing affected farmers with grain and cash subsidies.

KENYA CAN GO FOR A SIMILAR APproach by adopting a one-adult-one tree policy where each living Kenyan adult is required by law to successfully grow one tree in their life time. Secondly, the Government can pay Kenyans a token to turn portions of their farm lands into forests.

But forests, important as they are, are not the end-all in environmental care and management. Pollution, the other area Kenyans excel in, is equally worrying, and here is why.

Millions of tonnes of plastic materials litter the entire country. The few surviving rivers flow with water which is dangerous for human consumption. Those who live in cities like Nairobi will confess that pollution due to a combination of industrial activities and motor vehicles is making life unbearable.

The country’s over-reliance on fossil fuels should be checked and the spotlight turned instead on environment-friendly renewable energy.

Macharia Gaitho: Ongeri should spare us the trouble of forming taskforce

2008-07-22T07:09:00.002-07:00

Yet another season of discontent in our high schools, and yet another taskforce to find out the causes.

They should save the time and money by asking me because I can tell with near certainty what they will come up with. The usual suspect will be high up the list: Drugs, alcohol, movies, music, television, mobile phones, internet, and other ‘foreign influences’; and of course the devil will also get a mention.

That is the escapist world we live in by forever looking for external causes to everything when we should be focusing much nearer home.

With the exception of the internet and mobile, relatively recent phenomena, all the others cited above have been staples of teenage entertainment and distraction for as long as I can recall, and they did not necessary lead to the kind of hooliganism we are witnessing.

I WENT TO A HIGH SCHOOL WHERE a trip across the fence to Ma Bakers, the local shebeen, was a regular pastime. Cigarettes were commonplace and even the occasional spliff of some narcotic grass was no big deal. On weekends the boys trooped to town in big numbers to watch a movie, have a drink and maybe even pop into the Imani Day and Night Club, a certain house of ill repute famous for sating teenage pleasures.

We did not become arsonists simply by experimenting with growing up.

With the latest crisis the loudest call are for the return of the whip. Maybe a case can be made for re-introduction of the cane, but that is a simplistic solution unless looked at within the wider arena of discipline, counselling and leadership.

In my own formative years students grew up in very liberal environment compared to today when high schools, particularly boarding schools, have been turned into virtual jails.

During my six years in school I was caned twice, once by the headmaster and once by my housemaster, for two separate acts of wrongdoings involving truant and proscribed refreshments.

The headmaster, God bless his soul, was nicknamed ‘Kung’, short for Kung Fu. The housemaster was ‘Kurat’, out of karate. The references to martial arts were not incidental; they were reflective of the vigorous style in which a student would be pounced on if caught red-handed up to some malfeasance.

Otherwise it was extremely rare to be punished by the headmaster or any other teacher. Both Kung and Kurat could be terrifying, but they also understood how to cut the students a little slack. They understood growing boys.

There was also a very effective system of guidance and punishment that hardly involved the teaching staff.

Outside the classroom the school was run and discipline very effectively maintained by students themselves.

The teachers could dispense the formal and official punishment, six of the best, but that was a minor slap on the wrist.

The prefects were the figures of authority, discipline and leadership. They enjoyed certain privileges, but in turn they made sure that the school ran reasonably well. They also became role models, counsellors, confidantes and provided general guidance to the younger students. They also kept an ear to the ground to detect any rumblings of discontent or grievances that could get out of hand unless speedily addressed.

I can cite many students who were shaped by the basic ambition to also one day become figures of such prestige. And that meant working hard, being of reasonably good behaviour and lasting the course in order to rise to the senior ranks.

The system provided not just vital linkage between the school administration and the student population, but also freed to teachers to concentrate on teaching, a full-time job in itself that cannot be combined with close policing.

I gather that in many schools the prefect system or the seniority system has all but been abandoned. Some schools have tried to resolve the problem by training their teachers in counselling or even in hiring trained counsellors, but that cannot be adequate because they will not be with their charges virtually round the clock as fellow students will.

I have not addressed here the causes of indiscipline that come from the home environment or anywhere else, but only with a basic element of governance in schools that has been abandoned and the results are all too evident.

There has been a lot outrage about the manner in which police mistreated activist Anne Njogu during a recent demonstration. Terms like “gender-based violence” were used to describe the incident. Ms Njogu herself went graphic on TV explaining how policemen touched her breasts and private parts as they manhandled her into truck. How gross!

But then I would prefer to address the wider issue of how the Police Force under Commissioner Hussein Ali is exhibiting the worst traits of the Nyayo dictatorship when it comes to stifling free expression.

Anybody going out to demonstrate these days, male or female, knows that they could face police brutality, but I don’t think that has anything to do with sexual discrimination or harassment, And one certainly should not demand to be given preferential treatment just because she is the weaker sex.

Alphayo Otieno: Food aid no solution to hunger

2008-07-22T07:09:00.001-07:00

US PRESIDENT GEORGE W. Bush has announced about $200 million in emergency food aid. This is in addition to his call on Congress to make another $770 million available for food aid. In total, the emergency food aid from the US alone may be close to $1 billion.

Historically, the US has been the largest provider of food aid. In the 2007 fiscal year, for example, it provided 2.5 million tonnes of commodities to over 70 countries, with a monetary value of $2.1 billion.

Within the same period, it provided 1.5 tonnes of emergency food aid to 30 countries valued at $1.2 billion.

Since the beginning of the year, the world has been facing a food crisis. An increase in the price of food staples to sometimes astronomical levels has raised the risk of famine, exposed more people to malnutrition and led to protests around the globe. World leaders, seeking to avoid regime-toppling unrest, are trying to figure out how best to feed the world’s inhabitants.

In spite of its importance in the event of natural disasters, food aid never assuages the rising cost of food and shortages in the long run. The little that is left of domestic food markets is ruined by the inflow of cheap or free food.

President Bush’s concern to feed the hungry is welcome. Such compassion, however, seems to have been largely misdirected.

While the food aid might feed few millions of Africans, it does not do so for long. Africa can feed its own people – the problem is, it has never been allowed to try to succeed.

Eighty five per cent of Africans live in rural communities. They rely on farming to feed themselves and their families.

The European Union Common Agriculture Policy and the US farm policy of providing subsidies to farmers have displaced agricultural products, limiting income that could have been used to re-invest to enhance increased production.

THIS HAS RETARDED GROWTH IN the continent while at the same time undermining food production. According to the World Bank, if the US and EU reduce subsidies to their farmers, it would lift millions of Africans from poverty.

Despite calls for phasing out these trade-distorting policies, the US and the EU have been shifting the goalpost, contrary to the agreement reached during the Doha Round. Unfortunately, trade talks to get this agreement ratified have ended in fiasco.

According to a 2001 study by the Economic Research Service of the US Department of Agriculture, tariffs have the largest price distortion, with 52 per cent, followed by domestic support (31 per cent) and export subsidies (13 per cent).

Trading with the developed world has not been on equal footing. African countries face high tariffs for their exports. Furthermore, the developed world has made trade policies skewed against African countries.

On the other hand, African countries have not been able to trade among themselves. An increase in this trade by less than five per cent, for example, would yield more than $70 billion in annual income.

The food crisis has brought to the fore the need for Africa to urgently map out a strategy to meet the growing needs of its inhabitants. Solving the food challenge in Africa goes beyond President Bush and simple food aid.

Poor countries should not be discouraged by eco-imperialists from embracing available technology to solve their problems. Technology will bring about high yields and abundant food, making Africa a food-sufficient continent.

Mr Otieno is a journalist based in the US and director of AlphoNan Communications.

Leaders have failed test

2008-07-22T07:08:00.000-07:00

African leaders have remained largely silent since the indictment for genocide and crimes against humanity against Sudanese president Hassan al-Bashir by the International Criminal Court.

The few who have spoken have expressed discomfort with the decision, some even expressing concern that it will impact negatively on efforts to strike a peace deal in Darfur, the region of Sudan where Mr al-Bashir is accused of presiding over wholesale slaughter of his own subjects.

There have also been observations that the indictment exposes double standards and hypocrisy from the West. These are all concerns that may have some merit, but it looks like they are being raised only to obscure the real issue, which is that tens of thousands have been killed in a racist and religious pogrom directed by the Sudanese government in Darfur.

The other factor is that the indictment again exposes the impotence of African leadership when it comes to taking colleagues to task.

The African Union has proved itself unable and unwilling to take strong and unequivocal positions on Sudan and Zimbabwe. Very few, if any, African leaders have been willing to call their colleagues to account for dictatorship and human rights abuses.

The best we get is embarrassed silence that negates the spirit under which the AU was founded, along with devises such as the African Peer Review Mechanism.

The indictment against al-Bashir simply amplifies the fact that Africa is unable to take any meaningful action against bad leaders on the continent, hence forcing external intervention.

Okiya Omtatah Okoiti: Curb police abuse of human rights

2008-07-22T07:07:00.002-07:00

THE INVOLVEMENT OF POLICE in systematic abuse of human rights should raise our concern.

Of late, our police service seems to confuse law enforcement with pacification. The appointment of Major-General Hussein Ali as Police Commissioner may have been the result of the President’s desire to bring army discipline and morale to police ranks, but it has left law enforcement firmly in a military mindset.

I have a horrible feeling that if nothing is done to reverse the trend, we are sinking into a police state. We live in a democracy and we should be policed on those standards. Police must respect and protect human dignity and maintain and uphold the human rights of all. They must stop looking at social justice movements as enemies of the State.

The human and political rights of the citizen, duly enshrined and recognised by our Constitution, cannot be subordinated to the whims of police officers operating outside the boundaries imposed by our laws.

Our institutions of governance must reflect our democratic ideals. Key among these institutions is the Police Force. Because they regulate the freedoms which are essential to democracy, the way we reform police is pivotal to our success.

Being the internal, coercive arm of the State, the police must embrace democratic policing where their role is to protect and promote the human rights of all.

Our police often ignore the rule of law as though it does not, and should not, apply to them, making them criminals masquerading as law enforcers.

A major reason for this impunity is that the Constitution of Kenya gives the President unchecked powers to single-handedly appoint the commissioner, allowing him or her the leeway to appoint individuals who will advance his or her political agenda.

THIS POLITICISATION HAS REDUCED police from being State duty-bearers to being regime agents, and its weapon of power against its opponents.

Whereas the Police Act establishes internal disciplinary mechanisms, the proceedings are usually a sealed police affair and do not benefit the complainants who are locked out and are not even informed of the outcome.

This system allows police officers to abuse citizens’ rights with impunity and to treat the rule of law and due process with contempt.

The Kenya National Commission on Human Rights, which has statutory powers to summon any human rights abuser including police officers, and to enter and inspect prison and police cells, should hold police accountable.

However, the police persistently ignore KNCHR summons and often denies its commissioners entry into their cells.

The Criminal Procedure Code which provides for private prosecutions is of no use against the police given the Attorney-General’s habit of abusing his nolle prosequi powers to terminate such cases.

Treating police misconduct under such circumstances as the actions of the occasional rogue officer in an otherwise ethical organisation shields the Force from proper scrutiny. The problem is structural and requires a complete overhaul.

Parliament should overhaul the Police Act to establish the Force as an independent constitutional institution delinked from the Executive.

Mr Okoiti is a playwright and human rights crusader

Sort out this Cup mess

2008-07-22T07:07:00.001-07:00

For the third year in a row, Kenya Premier League clubs will not participate in the KFF Cup, one popularly known as the Moi Golden Cup due to differences with the Kenya Football federation.

Only Gor Mahia, the five-time winners have registered for the competition.

It is a sad affair that a tournament that over the years has become very popular has now been left for nondescript clubs to participate in.

KPL clubs claim KFF has set too many financial conditions for participating in the tournament and it will not make sense for them to spend money engaging in a tournament that will bring no financial gain .

This brings to the fore the ineffectiveness of KFF, which apart from running the tournament, has no other business being in office because they have already handed the responsibility to KPL.

Due to its poor management record, KFF has failed to marshal any sponsorship for the cup tournament whose winner gets a chance to represent the country in the Africa Cup Winners Cup, a title that has been won by a Kenyan club, Gor Mahia, in the past.

The reasons for withdrawing from the KFF Cup, may be genuine, but the flavour and excitement associated with the cup competition are gone.

It is our hope that the KPL clubs and KFF will rescind the decision to pull out of the competition. It will be foolhardy to have a national tournament like KFF Cup being staged while premiership clubs stay away.

No club outside KPL has the muscle to raise funds or pose a strong challenge in the continental competition. Therefore, KFF should either make up with KPL or do away with the competition altogether.

Rasna Warah: Kenyans must totally reject gender-based violence

2008-07-22T07:06:00.001-07:00

A DISTURBING TREND IS beginning to emerge in Kenya which portends doom for women’s rights. Almost every day, we see or hear about cases of women and girls being molested, raped or sexually harassed, yet there seems to be a subdued silence about the alarming rise in gender-based violence.

Take the case of activist Anne Njogu who was recently man-handled by police officers in full view of television cameras. Anyone who watched the news clip of Njogu being bundled into a police van during a
protest against former Finance minister Amos Kimunya would know without doubt that the way she was handled was nothing short of molestation.

At one stage, a police officer almost came close to removing her shirt. Yet no women’s organisation or woman parliamentarian, as far as I know, has come out to condemn this case of molestation on the part of the police.

A few months ago, a similar situation erupted in Nakuru when a female councillor was beaten up by a male colleague – only she didn’t take it lying down, but beat him back.

(The news clip of that incident, sadly, is being repeated ad nauseum on a television station as part of its signature clip before the 9 o’clock news.)

Women in the country are also increasingly becoming victims of gang-rape during robberies. The harrowing case of the elderly Canadian lady who was gang-raped and left for dead in Kitale a couple of weeks ago is just the latest in a series of gang-rapes by robbers in recent months.

This disturbing trend has been confirmed by the ongoing Waki Commission of Inquiry where witnesses have been presenting cases of gang-rape by warring factions during the post-election violence.

All these cases make one wonder whether Kenyan men have been possessed by the devil or whether our society has developed an unhealthy tolerance for gender-based violence.

An analysis of the rising cases of violence against women and girls around the world points to underlying causes that have much to do with the way boys are socialised into becoming men.

Some researchers have argued that violence against women is perpetuated by models of masculinity that encourage men to be aggressive and to treat women badly.

Boys who witness their fathers being violent towards their mothers or other female relatives are likely to repeat the behaviour in adulthood.

Some studies have also shown a link between drug abuse and violence against women. Alcohol and drugs diminish a sense of responsibility among users, which leads to them perpetrating acts they might not have engaged in had they been sober.

Male role models, including teachers, have also been blamed for the rising cases of violence against girls, especially at school.

TEACHERS WHO VIOLATE THE trust of their female students by coercing them into having sex are not only committing rape, they are encouraging their male students to do the same.

A Human Rights Watch study in South African schools, for instance, found that girls who were sexually victimised by their teachers ended up being victimised by their fellow students as well.

So what can be done to turn the tide against gender-based violence? A first step would be to change the way we raise our sons. Violence against women is a learned behaviour; boys learn it from watching how men in their communities treat women. The vicious cycle of violence therefore continues for generations.

The battle against gender-based violence must therefore be brought into our homes, in our schools and in our workplaces.

The onus to end the cycle of violence lies with fathers, teachers, male bosses, politicians and other male symbols of power and authority, who, through example, can teach boys and men to value women and not treat them like punching bags that can be beaten up or sexually violated at will.

As boys spend a large amount of their time in school, headteachers must make it their responsibility to ensure their teachers are not abusing female students. Heavy penalties, including dismissal and arrest, must be inflicted on male teachers found doing so.

The importance of male role models cannot be emphasised enough. These include musicians, sportsmen and other popular figures.

“Gangsta” music and videos showing women as the sexual playthings of men only serve to reinforce the notion that women’s value lies in their ability to service men sexually. The objectification of women leads to their victimisation as they are seen as mere “things” with no feelings, not as human beings.

Clearly, there is need for a multi-pronged approach to dealing with the crisis of violent crimes against women in our society.

Stiffer legislation may not be enough; what is needed is a transformation of our society in order develop zero-tolerance for gender-based violence, and to eradicate the deeply entrenched sexual stereotyping and violence-supporting attitudes among our men and boys.

Ms Warah is an editor with the UN. The views expressed here are her own and do not necessarily reflect those of the United Nations.

Monitor the teacher recruitment drive

2008-07-22T07:04:00.000-07:00

The recruitment of some 14,000 teachers begins this week countrywide. In line with the decentralised policy adopted in 2001, recruitment for secondary teachers will be done at the school level, while the primary ones will be interviewed at the district education offices.

Under the new policy, recruitment is done to fill vacancies that have been created through resignation, death or retirement. The needs-based approach marked a departure from the supply-based recruitment that was in practice until 2000, and which was stopped due to the financial crunch that the hit country in the era of the structural adjustment programmes of the 1980s and 1990s.

The policy was also seen as an answer to the then wide disparities in teacher deployment. Seven years later, opinion is still divided as to whether this was the right way to go.

Experience has shown that the exercise is usually marred by irregularities, ranging from discrimination against applicants based on their ethnic backgrounds to open bribery, despite the guidelines provided by the Teachers Service Commission (TSC).

Cases abound of community members throwing out so-called outsiders from interviews, insisting they only want their own. Not only has this spawned negative ethnicity, it also denied schools good teachers.

Coming after the violence that rocked the country in January and February that pitted ethnic communities against each other, it is possible that the rivalries may play out again during the recruitment. This is why the Education ministry and the TSC must monitor the recruitment drive more closely this time round.

While appreciating that the Government increased the number of recruits given the financial hardships facing the country, efforts must be made to employ more teachers in the future to solve staff shortage.

Even with the 14,000 to be employed, schools still need at least an additional 50,000 teachers. Matters have been complicated by the free primary school programme that saw a huge rise in pupil population.

The most important thing is to streamline the issue and eliminate the irregularities.

Makau Mutua: Why ICC prosecutor went for President Bashir

2008-07-22T07:03:00.000-07:00

On Monday, Mr Luis Moreno-Ocampo, the unflappable Prosecutor of the International Criminal Court, applied for an arrest warrant for Sudanese President Omar Bashir for genocide, crimes against humanity, and war crimes in Darfur.

The fact that Mr Bashir would be the first sitting head of state to be charged by the ICC demonstrates the repugnancy of the atrocities he has committed against black Africans.

When the court issues the arrest warrant – which I hope and think it will – President Bashir must be haunted and hunted by every state until he stands at the dock at The Hague in The Netherlands, the seat of the court.

Just to recap for those who do not know, the ICC came into being in 2002 as a permanent international court to investigate and prosecute individuals accused of genocide, crimes against humanity, crimes of aggression, and war crimes.

Mr Moreno-Ocampo, a lawyer with a remarkable reputation for prosecuting abuses by senior military officials and corruption in his native Argentina, was named the ICC’s prosecutor in 2003.

In March, it was clear when I spoke to Mr Moreno-Ocampo in Washington, DC, that he was a prosecutor’s prosecutor.

In other words, he will go to wherever the evidence and the law lead him. Politics does not impress him, or impinge on his ability to execute his mandate.

The ICC has three options for bringing evil-doers to book. First, states can refer crimes to the prosecutor. Second, the UN Security Council can refer a matter to the prosecutor.

Finally, the prosecutor can act proprio motu – on his own steam – to investigate an individual.

This is what Mr Moreno-Ocampo did in the Bashir case. He told me in March that he was studying Kenya’s post-election violence to determine if he should seek indictments.

In response to my question, he flatly said that the inclusion of an individual in the Grand Coalition Government – a political act – would have zero impact on him as a prosecutor.

That’s bad news for President Bashir. The Butcher of Khartoum, as some would like to call him, is now caught between the devil and the deep blue sea. Neither choice is appetising.

Post-election violence

Immediately after the prosecutor charged him with the most abominable offences known to mankind – including gang rapes and killings of girls and women for no other reason except that they are black – Mr Bashir organised fake demonstrations hoping to blunt his shame.

But I have news for him. Should the ICC accede to the prosecutor and issue an indictment – a decision is expected in less than three months – Mr Bashir would be hard pressed to travel anywhere as head of state.

He could be arrested by any country while on a trip abroad and handed over to the ICC.

His false braggadocio now will not count for much when he finds himself at the mercy of others. The only hope for him after an indictment is relief by the UN Security Council which has the power by a resolution to postpone a case for one year.

While such a postponement can be renewed, I do not think that it can even pass in the first place because I am sure France, the UK, and the US would oppose it.

Only China and Russia would favour a postponement, but a UN resolution can only pass if none of the five permanent members veto it. I will tell you another reason Mr Bashir will not get relief from the UN Security Council.

The charges against him are so horrendous that only the oil-hungry Chinese and the impervious Russians – the two major powers that don’t even pay lip service to human rights – are willing to see black Africans killed like animals.

But the Chinese are in a real fix. Should the court issue an arrest warrant while the Olympics are going on, Beijing would have to shut up.

Besides, Mr Bashir would not be the first big fish to go before an international tribunal.

Mr Saddam Hussein, Iraq’s former ruler, went before the flawed International Criminal Tribunal for Iraq and was executed.

Mr Slobodan Milosevic, termed the Butcher of the Balkans, cheated justice when he died in custody before his trial at the International Criminal Tribunal for the former Yugoslavia ended.

The point is that there are no good endings for heads of state indicted by international tribunals. Not one who is committing genocide in the glare of TV cameras.

As Mr Moreno-Ocampo said on Monday, “In the camps, al-Bashir’s forces kill the men and rape the women. He wants to end the history of the Fur, Masalit, and the Zaghawa people.”

He called it “a genocide by attrition” in which the harsh desert is the ally of the Bashir forces and the government-backed Janjaweed militia. Then the prosecutor resolutely proclaimed, “I do not have the luxury to look aside. I have the evidence.”

Already, Mr Bashir and the Janjaweed have killed over 300,000 black Africans. About 2.5 million people have been driven from their homes.

Darfur is a living hell, and it is impossible to imagine it getting worse. Those who oppose Mr Moreno-Ocampo’s charges against Mr Bashir lamely argue it will only inflame the Sudanese government.

So what? Can it do any worse than the genocide that it has been committing for years now? What is shameful is that the African Union is opposed to the charges. What good is the AU if it cannot even support the ICC to stop genocide against black Africans?

Living hell

There is a lesson in Mr Moreno-Ocampo’s move against the Khartoum leader.

It is that in a world that looks so hopeless – and where blacks are viewed as the most expendable beings – there are some who will stand up for the truth.

In my view, Mr Moreno-Ocampo, the Argentine human rights crusader, is a hero for all humanity.

He has fought for not only the human rights of Argentines, but for those of Africans in Darfur and Uganda, among others. He stands for something when standing up counts. He is my hero.

Makau Mutua is Dean and SUNY Distinguished Professor at the State University of New York at Buffalo Law School and Chair of the Kenya Human Rights Commission.

Mutahi Ngunyi: Can Kibaki outsmart the PNU rebels?

2008-07-22T07:02:00.002-07:00

President Kibaki is not in a good place. Early in the year, ODM broke into his “residence” and forced him to share power 50:50. Now we have two equal “governments” in one.

And, although he is the boss, I doubt that he is in control. But that does not bother me. What bothers me is the rejection he is facing from PNU on party unity. His point? If PNU does not hang together, it will most assuredly be hanged separately -- by ODM.

On this account, the President is dead right and you cannot argue with his logic. However, the PNU renegades have a point as well. To them, the President is no longer relevant.

No magic

He has no future, no magic and no power. In sum, he is taking them nowhere. Indirectly, therefore, they are telling him this: “If you claim to be a leader and you have no followers, you are just taking a walk!”

But why the drama? I have a hypothesis that touches on Vice-President Kalonzo Musyoka and Mr Uhuru Kenyatta. The two are President Kibaki’s blue-eyed boys.

In fact, they are perceived as his preferred team for 2012. The PNU rebellion is, therefore, a rejection of this selective affection; a revolt against President Kibaki’s preferred “successors.”

To the PNU rebels, the unity call is just a ploy aimed at protecting Mr Kenyatta. But how so? This man is targeted by a group of opposition MPs over alleged illegal nomination of councillors.

If found ‘‘guilty,’’ an attempt to impeach him will be mounted. And if a vote of no confidence is passed against him in Parliament, he will stand sacked.

No confidence

Unlike Mr Amos Kimunya, Mr Kenyatta cannot be fired by the President or be forced to resign. As Deputy Prime Minister, he can only be fired by Parliament through a no-confidence vote.

In my view, the President wants to avoid such an eventuality. More so one in which ODM and the PNU rebels gang up against Mr Kenyatta in Parliament.

But, on their part, the PNU rebels see this as an opportunity to fix Mr Kenyatta. If he is impeached in Parliament, their succession battle within PNU will be made easier. And this is a probable explanation why the President and the renegades are fighting it out.

But, apart from fixing Mr Kenyatta and fighting the “irrelevant” President, do the PNU rebels have a game plan? Let us consider the question using M/s Martha Karua, the chief rebel.

So far, she has done two things right and one thing wrong. First, she has decided to aggress on President Kibaki and wrestle the GEMA leadership from him. This, and her role in the December crisis, has earned her the title ‘‘jamba,’’ meaning brave warrior.

Given the insecurities suffered by her community after the election crisis, her status as a ‘‘jamba’’ might come in handy in the succession battle.

The second thing she has done right is to reach out to Mr Raila Odinga and other leaders outside the Mt Kenya region. This kind of bridge-making is what will bring healing to our country. But she continues to do one thing wrong!

The lady does not understand the art of political seduction. And this is probably because she learnt her politics from President Kibaki. Politically, the President is like a man who provides his woman with everything earthly and intellectual, but no romance.

Mr Odinga, to the contrary, is the type to politically romance a target and convince them that eating ugali with salt is posh. These abilities might sound vulgar, but in politics, you need to appeal to the heart, not the head. And in the case of M/s Karua, she cannot appeal to us with a sneer and aggression

Quarrelsome

She sounds quarrelsome when she does so. To fight Mr Kenyatta and his “twin” brother Mr Musyoka, she needs a more seductive appeal. More so because the two are smooth.

But if the PNU rebellion is on, and the President cannot stop it, what are his options? In my view, he has two. One, he can choose to abandon party politics and concentrate on his legacy. In this case, he would have to forego the grooming of a preferred “successor.”

And, while at it, the President should remember that his legacy will have nothing to do with the economy. If we ever erect a monument in his honour, it will not read “Here stands Mr Mwai Kibaki, the man who revived the Kenya economy!”

In my view, his legacy will be in the area of constitutional review. More fundamentally, ensuring that the institutional weaknesses that drove us into a state of war are fixed.

His second option is to soldier on with his unity project. And if he does this, he is bound to face open rebellion. More so if he is perceived to support the Kenyatta-Kalonzo axis.

But if he is hell-bound on grooming a successor team, he will have to quell the rebellion using high-handed methods. One thing we can expect is the demotion of M/s Karua from the Justice Ministry to a less significant position – maybe sports! But can President Kibaki do this? Is he capable of such drama? I submit that we do not know the man.

And today being a Sunday, I suggest that we say a prayer for Senator Barack Obama. Not for him to win, but for God to preserve his life. I say so because Americans are known to assassinate their best – especially the prominent blacks.

As his ancestral land, we owe the guy a preservation prayer. Or what do you think?

Mutahi Ngunyi is a political scientist with The Consulting House, a policy innovation think-tank working in the Great Lakes Region and West Africa.

Philip Ochieng: PNU parties: I agree with President

2008-07-22T07:02:00.001-07:00

one of the parties which compose President Kibaki’s Party of National Unity (PNU) has its own distinct ideology. That is why their refusal to back a single presidential candidate under the PNU for the 2012 elections cannot be called principled. For instance, is it because they believe the PNU-led Government has not served wananchi well?

But that is totally unacceptable. For the PNU is nothing but those parties.

Its failings are their failings. Indeed, we must attribute those failings to the very fact that — because their separate ideologies are identical — the constituent parties had nothing to criticise in the PNU’s collective performance.

Exactly what does Narc-Kenya offer to wananchi which is different from Ford People’s? How does Ford-Kenya’s own package of social goodies differ from that of Shirikisho or of Safina or of the President’s own erstwhile Democratic Party (DP)?

In the absence of any socially inspired ideo-moral policies to distinguish the legion of PNU constituents from one another, their sudden claim to “independence” smacks of rank opportunism. It is merely that, singly, the leaders of those parties do not see any chance whatsoever of being nominated as the PNU candidate.

In their thinking — and here they are probably right — only through their narrower parties can they each realise that ambition, and this for the simple reason that they are bosses of those (essentially ethnic) parties.

In the absence of any policies different from President Kibaki’s, we must assume that the leaders of the recalcitrant parties are yearning to enter State House only for the benefits of power and wealth which that other “august house” will offer them as individuals.

But, as Shakespeare quips, ambition should be made of sterner stuff.

“Sterner”, indeed, is the stuff which the President is trying to offer them. It is that, even if nominated by their several parties, they will never, singly, win the 2012 presidential contest. Mr Kibaki knows it well. While his DP and others vied with Kanu as separate opposition parties, President Moi whipped them like schoolboys.

MR KIBAKI FINALLY ROMPED INTO STATE HOUSE ONLY through the 2002 General Election -- only, that is, after the various opposition parties had agreed to unite under him against Uhuru Kenyatta, Mr Moi’s hand-picked Kanu candidate. The historical lessons learned were powerful.

It is these moral lessons that the President is trying to impart to the Johnny-come-lately who leads each of the PNU’s constituent parties.

For the President is evidently convinced that the PNU medicine is what the doctor ordered for Kenya. I disagree. But my opinion is beside the point.

The point is that, if the President did not believe that the PNU has served Kenya well and can serve it better than the Orange Democratic Movement (ODM) and other caucuses, he simply would not bother to struggle for a single PNU presidential candidate.

For there is exactly nothing in it for him. As an individual, what can he lose or gain whether or not you heed his advice and unite? He is coming to the end of his two-term tenure.

And the constitution does not allow him (or anybody else) to seek more than two terms.

Thus, whatever his other motives may be — and I have heard detractors allege that, in his latest activities, he is just trying to consolidate the interests of a unicorn called “Mount Kenya” — there is at least this one sense in which the President’s present efforts can be seen as selfless.

The problem is that we live at a time of infantile disorder, a time when no youngster will listen to any avuncular wisdom. As Ecclesiastes the Preacher laments, in an age of blind self-pursuit — in an age of extreme individualist greed for power and wealth — “Wisdom cries out in the street and no man regards it.”

In what Max Weber condemned as “the Protestant Ethic”, everybody seeks to reap into his own basket — whereas, if they reaped into a single large basket, they would fill it much more rapidly and serve their collective interests (even as “Mount Kenya”) much more effectively.

But I am not a propagandist for “Mount Kenya” or — for that matter — for Jonam or “Kamatusa” or any other narrowly conceived grouping.

I support the President only because I believe that only when unity begins at home can it serve as the basis of a truly long-lasting national unity.

I believe it is not contradictory for Mwai Kibaki to sue for a united PNU and, at the same time, to publicly woo Raila Odinga and Kalonzo Musyoka to strengthen the troika — the three-horse team of the Russian steppe once upon a time — with which to implement the national accord for which we are all yearning.

Fix this confusion and, while at it, spare our children

2008-07-22T07:01:00.002-07:00

To get an idea of the confusion we live in, ask a child in junior school what they are taught in their weekly civics drills. It is the ruling party. I am told the curriculum still tells them it is Narc.

Let’s not quite blame the children or their teachers for that – it is difficult enough as it is for anybody to figure out the confusing party landscape in this country.

PNU, the Big Brother in government, is supposed to be a coalition of parties. Which I assume means it is not in itself a party, but an arrangement of convenience for small parties that need to cohabit.

BELATEDLY, WE HEAR THE PNU wants to transform itself into the real thing. Something so elementary that should have long ago been factored in is now running against the many vested interests that inevitably had taken root in this loose cohabitation. To mesh the whole thing together now is causing quite some sweat as events are beginning to show.

Personally, I am not a fan of the loose, come-we-stay party culture that defined Narc and now PNU. I consider its glorification in post-Kanu Kenya to be quite misguided.

Coalitions wherever they are practised do not signify a stable party, leave alone a stable government. By their very nature they encourage endless sniping and back-biting.

A stable multi-party environment is best anchored under a few big parties who have no inhibitions when it comes to making their national presence felt. Give a plus there to ODM. What we see in PNU are middling parties with regional tags whose professions of capturing national power are but mere pretence.

Narc-Kenya seeks to be an exception, and so wants to break away. But what chances does it have? I have my doubts. The perception on the ground is that its interests are factional. Nor is the fact that it is moving out of the PNU basket likely to convince others that it is cut from a different cloth.

Don’t forget that others like the Democratic Party have tried the trick before, and failed. So what is it that makes Narc-Kenya imagine it could fare differently?

Because it has Ms Martha Karua and Mr Danson Mungatana?

Like the next man, I admire the Gichugu Iron Lady for her courage and grit. What I can’t figure out is why somebody of her intelligence and experience clearly has ignored the twin lessons of the 2005 referendum and last year’s polarised election. One must assume that being overlooked for the deputy premiership by the man she went to the wire for has been hugely dispiriting.

It would nonetheless be a grand pity if another sterling career got derailed like Mr Paul Muite’s because of a perception of being a lone ranger.

Most Kenyan parties like to explain away their incoherence by claiming they are practising “internal democracy”. This is diversionary. What absolutely matters is if a party stands a chance to win power, not the divisive cacophony it generates.

Without power you are impotent. And if all you are concerned with is this “internal democracy”, you become just a shouting-shop. And the circus goes on. We now hear of another PNU splinter party calling itself the Grand National Union (GNU).

It has proudly installed as its chairman a former MP from central Kenya who lost spectacularly in his bid for re-election last year. One gets an idea of its likely impact when you factor in the fact that its top people are “heavyweights” like Laikipia East MP Mwangi Kiunjuri.

The GNU group are people fleeing from Narc-Kenya. It is said they are running away because they have reservations about working with Ms Karua.

They believe that in forming their new animal, they will be giving themselves a bargaining peg in whatever new formation emerges out of PNU. If so, their strategy is confused.

I DOUBT WHETHER IN THEIR OWN catchment areas people have any stomach left for yet another forgettable party. I don’t foresee any major seismic waves being caused by this party any more than I can see, say, Chama Cha Mazingira doing the same.

Mt Kenya leaders have this unfortunate pre-occupation of gazing at their own navels the whole day and forgetting that there is a bigger world out there. More tragically, their behaviour only feeds into the stereotypes their opponents have fashioned for them in the multi-party era. Look, who is talking loudest about 2012?

Ms Karua has now come forward to say she wants to be president. The other names being mentioned in the same breath are Uhuru Kenyatta, Kiraitu Murungi and their Rift Valley cousin George Saitoti. In which other region do you find such a glut of would-be candidates being paraded?

Demystify book building process

2008-07-22T07:01:00.001-07:00

We unapologetically revisit the Safaricom initial public offering (IPO) because the issue must not be swept under the carpet: not least because it is the largest sale of a public asset in Kenya’s history.

Having been founded and partly built on public funds, we have a duty to revisit the matter as many times as possible.

Indeed, it is astounding the way Kenyans treat with lamentable disinterest matters of fundamental impact on the development process while totally absorbed with trivial political sideshows.

Safaricom is likely to, if it hasn’t already, set the trend for future privatisation. For the first time, the controversial book building — which we focus on in our business pages — has been used to allocate shares to foreigners.

Perhaps incidentally, the largest chunk has ended up with issue joint lead advisor Morgan Stanley who are holding brief for their yet-to-be disclosed clients. We do not know whether Treasury is comfortable with that situation.

But we have our own recommendations on what should be done to eliminate such situations.

First, book building should only be used once rules are set up by the Capital Markets Authority (CMA) and not through rules of other jurisdictions. There are examples worldwide of how to go about it in a transparent manner.

It will be remembered an earlier attempt to use the method during the KenGen IPO floundered under intense opposition from the mercurial stock broking fraternity. Only Treasury, in particular the Investment Secretary Esther Koimett, may tell us why they opted for it this time.

Two, it should only be employed after ascertaining that it would add value for Treasury. Certainly, the 50 cent premium Morgan Stanley achieved while it was obvious local institutions would have paid a shilling premium for the privilege — if the triple digit subscription is anything to go by — is not what we have in mind.

Thirdly, keep foreigners from our assets if there is no substantial value addition to be derived from their participation. In the next IPO, let Kenyans (only) buy at a known or competitive price.

Mutuma Mathiu: This African fatalism will be the death of us all

2008-07-22T07:00:00.001-07:00

I have two members of parliament. There is Fred Gumo, the member for Westlands and there is Mr Gitobu Imanyara, the member for Imenti Central with whom I have a history. You see, as an urban villager I live in Nairobi but I cling to the village where I was born and bred. I am an urban villager.

Mr Imanyara, then the publisher of the Nairobi Law Monthly, hired me as its editor when I was all of 26 years old. We, unfortunately, have lost touch but I follow his political career with great interest.

In an interview elsewhere in this paper, Mr Imanyara predicts that the grand coalition will not last the full term. The Orange party will pull out as soon as it has a big enough war chest, he thinks, putting the thing out of its misery.

WHEN I KNEW MR IMANYARA, HE HAD A few years earlier done a stint in detention for dissident activities such as asking for a multiparty system of government.

In his law offices at Tumaini House were to be seen many dissidents of the day: Dr Mukaru Ng’ang’a, Paul Muite, Pheroze Nowrojee and many others. I remember taking Mr Musikari Kombo’s story for a campaign we were doing on human rights, naturally.

He had been locked out of the electoral process over oathing and Mr Imanyara thought that his was not a legal but a human rights issue. Mr Imanyara had a strong sense of right and wrong in those days and a remarkable intellectual capacity.

So when he talks about his former friends in the dissident movement, you have to assume that he knows something you probably don’t.

But let me tell share some tribal wisdom. My friend in school, Mr Koome Marangu, used to tell me: “I see nanga all the way from Muli.” This is complete nonsense without the context.

Mr Marangu comes from a village called Kithirune, which is up in the mountains. Muli is the neighbouring village, separated from Kithirune by a stream. Because the streams are in the young stage, they have cut deep gorges and valleys forming formidable barriers between villages.

The two villages are neighbours but in the old days when we were zinjathropus and knew nothing about bridges, one may as well have been Mars and the other in Jupiter.

The spears carried by great warriors such as myself have two ends, the stabbing end and a sharpish bayonet, stuck in the ground when a warrior is taking a breather from massacring the Kikuyu, the Samburu, the Maasai and such other neighbouring tribes.

I have often marvelled at the traditional African’s incredible patience. And it is patience which blunted the African’s creativity and innovation. He used the most rudimentary of instruments to get food and kill, he grew his crops and sat under a tree and waited for them to grow.

Another piece of tribal wisdom expressive of this foolish patience and fatalism: Let the termites fell the fence post. The African sometimes knows that he can affect events by doing something, but he also knows that sometimes he will get the desired outcome by merely sitting back and allowing nature take its course. In other words, rather than happening to things, he allows things to happen to him.

Mr Imanyara is quite likely right, being a clever politician, that the grand coalition is doomed and that there is a possibility of further instability. He sees the bayonets from far.

SO DO I, BUT THEY ARE OF A DIFferent nature. Kenya has been in a state of permanent campaign since 2004; today we are in a heightened state of campaign. This has a variety of consequences.

First, being in government is viewed as a transient state for the accumulation of money for campaigns and personal enrichment through corruption. I have said many times that this is likely going to be one of the most corrupt governments in the history of the multiparty era.

Secondly, is the systematic destruction of national institutions. As we have already seen, senior positions in the civil service are now given to campaign staff.

The civil service therefore, far from being an independent and professional body, is an extension of politics where officers are in government to serve and represent the interests of their parties, leaders and tribes rather than serve Kenyans.

Also, politicians will, if they already haven’t, infiltrate and tribalise the military and the security services, in order to gain political advantage. Those officers who do not play ball will be destroyed through emotive allegations of corruption or incompetence.

In the process the public will lose faith in the institutions they work for.

Thirdly, government is losing the power to take necessary but unpopular decisions because of fear of electoral cost. A good example is the Mau Forest saga.

The destruction of the Mau forest threatens the survival of not just the entire of Kenya, west of Nakuru but also has regional consequences for countries which rely on Lake Victoria, fed by waters from that catchment.

The solution to Mau is to resettle those with title deeds on alternative land, prosecute the squatters for trespass on protected land and replant the forest, prosecute those who allocated the forest and those (former) senior government officials who undeservedly got large tracts for corruption.

The continued destruction of the forest will destroy those farming it and their relatives downriver in Kericho and elsewhere. The protection of the forest is necessary for the survival of millions of Kenyans; it is not a political or tribal issue.

But there isn’t a politician in Kenya with the balls to do right thing. Because, in a state of permanent campaign, it would be electoral suicide in the Rift Valley to take any action at all.

So what do we do? Well, we could just sit back and watch the termites fell the fence post.

Mutuma Mathiu is the Sunday Nation managing editor.

Kajwang left out many details on Chinedu

2008-07-22T06:58:00.002-07:00

Immigration Minister Otieno Kajwang’ requires to carry out more thorough investigations and be candid and careful in his proclamations regarding the issuance of entry and residency permits to visitors. Immigration has grave consequences for national security, it is not a happy-go-lucky enterprise.

The ministers’ statements regarding the immigration status of Mr Anthony Chinedu Efedigbo are, to say the least, puzzling. Mr Chinedu, as he is commonly referred to, has a somewhat murky immigrations history where Kenya is concerned.

On May 13, Mr Kajwang told the press that Mr Chinedu was in the country on a visitor’s visa, adding that it would wrong for Kenya to be seen to be “bundling out foreign investors legally in the country”.

He said: “My research has shown that the man is in the country on a visitor’s visa which has six months to expire. At that time we will renew it if he applies for the same.” Mr Kajwang’ noted that Mr Chinedu was legally married to a Kenyan and that were he to apply for “anything else” that fact would be considered.

Interestingly, Mr Chinedu on the same day applied for an investor’s permit.

It would appear that Kajwang’s research was far from thorough. A week after his remarks to the press, the Director of Immigration responded to Mr Chinedu’s application and informed him that he was not in the country legally, having been declared a prohibited immigrant on July 19, 2007, that those prohibition orders were in force and consequently he did not qualify for such a permit.

Mr Chinedu in mid-June went to court to challenge the prohibition orders. The orders were imposed on the request of the Director of Criminal Investigations who alleged that Mr Chinedu was a drug dealer.

Mr Chinedu, according to documents obtained by the good reporters of Sunday Nation, was in the country on a tourist visa issued on May 5. How a person who had lawfully been declared a prohibited immigrant was issued with a visa is quite puzzling.

It is reasonable to assume that at the time of making that statement, Mr Kajwang’ was aware, since these are facts on file, that Mr Chinedu was the subject of intense interest by the anti-narcotics police.

He must also have known, again because this was information on file, that the deportation orders of June 19, 2007, were issued against Mr Chinedu, then travelling on a Nigerian passport. His record of arrest and acquittal in the courts on drug charges and being in the country illegally are also on record.

A closer scrutiny of the records ought to have revealed that Mr Chinedu re-entered the country from Uganda through Busia, but that this time he was travelling as an Ivorian and that a comparison of his two travel documents reveals that the same man has two birthdays and was born in two different places: Western Ivory Coast and Onitsha in Nigeria.

Unless there is a special visitor’s pass, the normal tourist visa is only three months and therefore it is a bit confusing for the minister to say that his research indicated Mr Chinedu still had six months on his visa.

If the prohibition orders against Mr Chinedu had not been removed by the courts or the Minister for Immigration, then Mr Kajwang’s assertion that Mr Chinedu was in the country legally was incorrect.

Mr Kajwang’ is a good natured and cheerful man and his confessed liking for people who pray is elevating. There may also be some truth in his allegation that he is being fought by corruption networks at the Immigration Ministry. But the inattention to detail of a man in charge of such a sensitive ministry is cause for some worry. There is definitely something amiss.

It could be useful for Mr Kajwang’ to go over the file again, this time more carefully, and have a discussion with the Director of Immigration and see whether they can reconcile their divergent views about Mr Chinedu.

Kenyans certainly hope that these are the only confusing statements and interesting decisions taken by the affable minister.

There is a point at which the elastic application of ministerial discretion, innocent incompetence and a weak grasp on facts begin to morph into something more sinister. And Mr Kajwang’s is fast approaching that point.

Philip Ochieng: In which other country do they say this?

2008-07-22T06:58:00.001-07:00

According to a Sunday Nation snippet recently, “at the height of the post-election violence in the country, vandals descended on Kisumu City leaving behind massive destruction of property...”

Every reporter in the country in every newspaper in the country is certain to quote every moralist in the country as exhorting us to do this or that in the country.

President Kibaki was recently reported as telling members of the new Cabinet in the country to work together as a team. According to another newspaper story, Francis Atwoli urged trade unions in the country to put the interests of workers in the country above everything else in the country.

He accused private-sector employers in the country of not treating their employees with respect.

Scribal urge

What is this scribal urge to give us information we just do not need? Why “in the country”?

In the context of “post-election violence”– especially since Kisumu is mentioned in the blurb – which newspaper reader in the country will not know that Kenya is the country the sub-editor has in mind?

Given the wayward character of his own ministers, does President Kibaki have the moral authority to urge unity among the cabinet members of any other country? In which other country can Mr Atwoli urge unions to represent workers effectively and employers to treat them with respect?

I have been fighting this phrase ever since I was the Daily Nation’s chief sub-editor in the late 1970s, managing editor towards the end of the 1980s and quality controller during the first half of the 2000s, and, some time in between, editor-in-chief of The Kenya Times.

But, as you can see, I am an utter failure. The phrase “in the country” remains prominent in every news page of every newspaper in the country!

Wide open

The culprits listen keenly with one ear but keep the other ear wide open for my advice to make an immediate exit.

What does it mean? Yes, the words “in the country” are English. And, no, they do not breach any grammatical rule. But the idea they express is anything but English.

The information content is anything but journalistic. The imperative is anything but moral.

My peers in all the newsrooms in the country tell me that “in the country” is probably a literal translation from one or all of our vernaculars in the country. But I doubt it. Certainly, Dholuo -- my mother tongue -- does not habitually behave like that.

It has such words as epiny (“in the country”), epinyni (“in this country”) and epinywa (“in our country”).

But one does not feel the urge to use them every time one refers to a national habit or institution. Even the Kiswahili nchini (“in the country”) is never used with such abandon.

Let me advise for the umpteenth time. Avoid this phrase. Use it only when you suspect that the reader might be perplexed about which country the speaker has in mind.

Njuguna Mutonya: Relief as Mombasa council clears garbage mound

2008-07-22T06:57:00.002-07:00

A week ago , the Mombasa Municipal Council cleansing department sent some trucks and workers to clear a rare garbage mound that had been developing for some years on Moi Avenue.

But that is what they are supposed to be doing daily- one would imagine. This, however, was no ordinary garbage mound.

The brazenness of its existence was a stark reminder of all that was wrong with the civic administration in the tourist capital of Kenya. The mound had for years been festering with pests and scavengers letting off a fetid smell.

For those who have not been to Mombasa, this is the point where all visitors end their city tour, posing for memorable pictures with the twin pair of tusks that are to Mombasa what the Eiffel Tower is to Paris or the Statue of Liberty is to New York.

Hundreds of tourists are dropped off at the point to take photographs or to sample through the numerous curio shops and eateries that dot the busy avenue despite the smell from rot upstream.

One would have thought the odour was the true scent of Kenya after driving through the Kibarani dump on the Makupa Causeway from the airport!

To add insult to injury, a memorial park to Kenya’s independence – the famous Uhuru Gardens – our very Trafalgar Square or Hyde Park, lies just a few metres from the sordid mess. Today, there is an air of bubbling anticipation since the garbage mound was removed.

A single four sentence e-mail doing the rounds within the vast tourism circuit and originating from the powerful lobby Mombasa and Coast Tourism Association (MCTA) has identified the wielder of the magical wand that removed the garbage.

Again the story is innocuous.

It started with a telephone call to the new Town Clerk demanding for the umpteenth time that the mound be cleared for the sake of tourism and the people of Mombasa.

The mound was cleared in exactly two hours!

Many have heard of the governments Rapid Response Initiative but this was a bit dizzying for speed in a town where even emergency units are sometimes known to arrive way past the event has sputtered to a close.

The message tagged –“Kudos to the Town Clerk “ and coming from the tourism sector suggests a change of modus operandi in the City Hall which has grabbed headlines in the past for all the wrong reasons.

As the CEO of the administration, Mr Tubman Otieno must take advantage of the support that is being offered from these vital stakeholders to work above the political class as they unravel their squabbles.

If he can move with the same speed to undo the obscene location of vast dump-sites behind the Mvita Hospital as well as the rotting mess on Makadara Gardens, Mombasa might well declare him the town’s saviour.

Even as he cleans up City Hall where workers have received orders to change attitude (and dress code) or leave, Mombasa residents are ready to work with him if his are truly meaningful changes.

The Moi Avenue mound was an affront to the very citizenry of Mombasa – a rude reminder of civic irresponsibility which has been the hallmark of insensitive administration.

With the wrangling over the control of the town’s top seats, the Town Clerk must rise above the fray and provide leadership in service delivery.

The resolution of the waste disposal issues from the tenders to the relocation of the dump-sites and the sewerage networks must all be addressed NOW since Mombasa is part of the Vision 2030 agenda where tourism is one of the critical pillars.

The potential of Mombasa and the Coast in general cries to be exploited- Just do your part!

Andrew Limo: Parents must act now to control cyber culture among children

2008-07-22T06:57:00.001-07:00

The pendulum of opinion on the impact of computers and the Internet on children will always swing. Is the technology good or bad for our kids?

Should the State control access or should it be left to parental guidance and “filter” software?

These are the same questions we asked when TV and radio came to our sitting rooms and our schools. Television media was going to “transform learning”.

But many years later no one is sure if it has. At least old radio made an attempt. I can vouch for Mwalimu James Onyango Joel of the Kenya Institute of Education for he answered many of our questions in the broadcast to schools’ programme, “Post Box”.

Now I guess he has some helping hand from Google and Yahoo and many other search engines.

With internet, education for children should be fun. That is, if one accesses the right content. They get more informed and more imaginative, though in practice, the young use the Internet more for entertainment.

Children always fight over game consoles and there is nothing as addictive to youngsters as the Playstation, Nintendo or Sega.

Parents who afford these modern gadgets are happy that the children are kept busy. For the children, it is a golden opportunity to get away from adult control.

While the TV brings the family together, the computer is busy killing family life. Most communication technologies tend to reduce interaction among people in a given physical location while increasing interaction with those in the virtual space.

We do not talk on phone or email or chat online with people in the same room.

These technologies can bring about anti-social behaviour, especially among children. Children engrossed in a car racing game will find an extension of a handshake from a long lost uncle interruptive, if not offensive.

In the good old days, such children would instantly race out of clay modelling to soil the guest with a loving embrace.

There is a new cyber culture which makes kids happy to interact with strangers thousands of kilometres away than listen to the wisdom of the land by the fireside from Grandma and Grandpa.

The problem with the "new Grandma” is that it does not only inform, it also corrupts the morals of the young. Violent computer games have been blamed for the shooting at schools in the US. Paedophiles seduce children online and aggressive marketing on websites spurs consumerism.

The influence of computers on lifestyles of Kenyans is growing for two major reasons.

First, the cost of hardware, software and connectivity have fallen considerably even as quality rises. The wireless revolution has helped greatly in widening the presence of Internet connectivity.

Secondly, more people, even in the rural areas, now have the skills and knowledge on ICTs. In urban areas, smart entrepreneurs are coming up with computer game parlours which target the young.

They are found mainly in big stores and children busy themselves with them as parents shop around.

Everyone agrees that the technology has pros and cons. The big question is whether or not the new media should be controlled.

Past attempts in the US to outlaw indecent materials have been met with resistance from the proponents of the constitution’s First Amendment Act, which guarantees freedom for Americans.

Some people argue that the Internet should never be regulated, for unlike TV or radio, it does not use public airwaves.

Whatever the case, something must be done to control access to harmful content, especially by children.

I have admired police action in Nairobi against underage drinking and smoking. The Internet also needs to be policed. We need some regulation that defines what is decent online and what is not, and more importantly how to police it.

Any initiative towards formulating policies should involve owners of cybercafés and school administrators.

But perhaps we should be more pro-active and start developing good local content that would entice children to Kenyan culture and values.

The Information and Communications PS Bitange Ndemo thinks we should even digitise the Bao game, that age-old pass time of many Kenyan communities.

Instead of counting pebbles on a dug-out wooden tray, new cyber players will be clicking on software for the same game but on a different medium.

Kenyans should not wait for the wrong culture to take root then cry for regulation. The time to guide and protect the digital generation is now.

Randy Smith: America’s house is on fire

2008-07-22T06:56:00.001-07:00

That’s an American way of describing a calamity that’s deep and personal.

And many are using it to describe our economy, which is in a downward spiral that it’s causing some to wonder whether the nation is in the beginning stages of its first depression since the 1930s.

At this moment, it’s clear that neither John McCain nor Barack Obama is in command of the situation.

Obama’s economic policies were formed when gas was cheaper, and seem outdated. McCain pivots every day with new statements.

His views are not yet based on any firm grasp of the enormity of what’s at hand. As a nation, we’re far off-shore and heading into a perfect storm, perhaps the worst of my lifetime.

Petrol now costs more than $4 a gallon in the US and it’s heading to $5.

The result has been a major jump in the cost of getting food to the market, a large reduction in airline traffic and the collapse of a domestic motor vehicle industry that made its money on fuel-guzzlers.

The housing market, the economic underbelly of the average American, is falling apart. The prices of homes, which had been propped up by predatory lending practices and speculation, are collapsing.

At one local auction, a house that sold a few years ago for $69,000 was sold for $5,000. Many Americans have large loans based on the value of their homes. And they owe far more money than their homes are worth.

The financial securities industry is awash in uncertainty. Witness the collapse of the once proud Bear Stearns securities company and the government’s planned intervention to save two companies that hold nearly $5 trillion in home mortgages.

In Los Angeles this week, the huge IndyMac bank was forced to close. As I watched hundreds of investors clamouring outside the bank on television, I wondered if this was the beginning of the end for many others.

My favourite air carrier, Midwest Airlines, announced that it was laying off 40 per cent of its workforce and taking all of its MD-80 aircraft out of service. The reason: High fuel costs.

I’m worried about the future of General Motors, which is one of our biggest employers. The company employs thousands and pays middle-class wages.

For too long, management has bet that the world’s oil supply would last forever and has built bigger and bigger cars and trucks. Now, it’s stuck with outdated factories throughout America.

This week, the company announced it was suspending its dividend for the first time in 86 years. It also cut healthcare for the more than 90,000 salaried employees when they reach age 65.

And despite brave hopes by executives, there’s concern about the future of the company.

I note all of this in light of the American election. What are the politicians talking about in America?

This week, The New Yorker magazine has sparked controversy. On its cover, there is an image of Barack and Michelle Obama in the White House.

Barack is wearing Muslim clothing, an American flag is being burned and terrorist leader Osama bin Laden is honoured. Both Obama and McCain have condemned this poor attempt at satire.

Jesse Jackson, took aim at Obama, claiming that he talked down to black Americans. And then Jackson added, in a television broadcast, that he’d like to do something to Obama (an obscenity) that would make any man squirm.

In a speech on terror, McCain said that he was going “to get” Osama bin Laden. It made headlines and boosted McCain’s image as a tough guy.

At the moment, Obama and McCain seem out of touch on the economy.

And frankly, so is the popular American media. Nobody wants to admit it. But America’s house is on fire.

Smith is an editor with the Kansas City Star newspaper in the United States

Cabral Pinto: Agitation by civil society teams must be coordinated

2008-07-22T06:55:00.000-07:00

Agitation against the alleged improper sale of Grand Regency Hotel by the Government was carried out by the Kenya National Commission on Human Rights, a governmental institution and a number of civil society organisations.

The organisations included the Law Society of Kenya, Transparency International-Kenya and the National Civil Society Congress.

The grand opposition participated in the agitation by undertaking two marches. The media carried stories criticising the sale. What has been striking about the agitation is the lack of coordination of the various activities by the groups.

The Law Society filed a private prosecution against the suspects of the Goldenberg scandal in 1994. Although the attorney-general terminated the case and took it over, it is an open secret that the Goldenberg prosecution has not progressed after 14 years.

A lot of taxpayers' money has been wasted in the prosecutions that were never seriously undertaken and also in setting up a commission whose findings have been pooh-poohed by the Government.

It is to LSK’s credit that it started a private prosecution that over the years has kept the Goldenberg scandal under the radar of public opinion.

The Kenya National Commission on Human Rights condemned the sale, asked Finance minister Amos Kimunya to resign while giving him an opportunity to be heard by the commission.

As a governmental institution KNCHR has a unique mandate that allows it to agitate against the Government on issues of public interest while it is also mandated to play an advisory role.

Transparency International Kenya condemned the corruption and went to sleep. Given that the issue of corruption in Kenya falls under its core mandate, the organisation has failed to be pro-active in stopping these scandals by undertaking a strict consistent watchdog role.

The National Civil Society Congress wanted to organise a demo calling on Mr Kimunya to resign but police got wind of the march and nipped it in the bud.

Is it not a great shame that while the Waki Commission has been set up to inquire into the violence that took place after the General Election, our police force continues to deny Kenyans their freedom of expression, assembly and the right to organise while not relenting on its brutality against agitation?

Religious organisations voiced their condemnation, but as usual prayed for a corrupt-free Kenya. While they cannot keep alleged sinners from their congregation, they could preach against corruption.

How could these activities have been coordinated to a great effect and impact? All the stakeholders mentioned here have different skills and mandates that could keep the issue of the sale of Grand Regency alive for a long time.

LSK could investigate all the criminal activities related to the deal and undertake private prosecutions.

Although the attorney-general will move quickly to terminate these proceedings, he will be under pressure to start the criminal proceedings himself. The KNCHR has a great opportunity to help LSK with the requisite evidence.

The KNCHR has access to many government big-wigs and can get as much information as needed. The commission has access to records and documents that no single civil society organisation would ever dream of having.

The marches, demonstrations and processions by the grand opposition and civil society groups can be coordinated to a greater impact than what is happening over this issue.

What must be constantly emphasized is that for these activities to have effect there must be some consistent follow-up.

The current agitation by various groups constitutes a one-off event with no thinking, energy, mobilisation and continuous execution of the activities planned.

Such disorganisation helps the Government to defuse the political tensions arising out of the corruption issue at hand.

The opposition needs to learn a lot from the mass action of 1997 when political parties worked hand in glove with civil society groups in a consistent manner, scoring important political gains.

Review workers’ pay

2008-07-22T06:54:00.002-07:00

A report in this newspaper reveals the way the lower cadres in public service are having to make do with starvation wages.

Despite the best efforts of the Government over the past few years to provide a better deal for those on its payroll, the modest salary increments have not closed the gap between low wages and the rising cost of living.

Even at the middle and senior ranks, wages pale in comparison to what a person of training and expertise could command elsewhere.

Since independence, public sector wages have stagnated in comparison to the steady increments in the private sector. The result is a dispirited and demotivated workforce.

The situation is made worse by the selective and discriminatory practice which came into fashion over the past few years where those in position of authority secured for themselves packages that compare favourably to private sector scales, but ignored the needs of everybody else.

Ministers, MPs, permanent secretaries and judges come to mind.

The Government has for many years talked about improving terms and conditions for all its workers and also addressing the disparities in the public service, but nothing meaningful has ever been done.

This is an issue that must be addressed urgently, but we are aware that it can only be tackled through a comprehensive strategy rather than by measures that don’t take into account economic realities.

It is a fact that the Government wage bill is already far in excess of what is sustainable.

The government must summon the political will to drastically trim a bloated and unproductive service so that those remaining are well paid well and in turn deliver as expected.

Peter Mwaura: Officials must accept biting comments without tantrums

2008-07-22T06:54:00.001-07:00

Both former Finance minister Amos Kimunya and Lands minister James Orengo should grow a thicker skin.

They should accept biting comments about their official work without tantrums. But with grace and dignity.

Mr Orengo accused Mr Kimunya of selling the luxury hotel, the Grand Regency, acquired by the Central Bank of Kenya in a legal case, for a price that he said was reportedly below its true value.

Mr Kimunya hit back, claiming Mr Orengo went public because he had demanded a bribe of three million shillings to clear the transaction. But he was rebuffed.

The two public figures have chosen to treat the public to a theatre of threats and counter-threats that they will sue each other for defamation.

The histrionics boil down to a theatre more concerned with scoring political points and restoring damaged reputations than seeking justice.

Fortunately for them, the public is enthralled. It’s being entertained. It’s looking forward to the spilling of more blood.

But an important principle is being lost. The two public figures should have been advancing the public debate, not threatening to sue each other.

By virtue of being ministers who chose to debate the Grand Regency controversy in public rather than in the Cabinet, they consented to a robust discussion of the controversy. They should not complain of defamation. It comes with the territory.

Section 79 of the Constitution allows such a discussion. It protects freedom of expression. That freedom includes the publication of information that shocks, disturbs and scandalises.

The issue, in essence, is how far it is proper to say something that is defamatory to somebody who has accused you of some wrong-doing. It is a problem of the limits to the right of reply and freedom of expression.

The highly-charged atmosphere of counter-accusations in the Orengo-Kimunya saga was precisely the moment when defamatory statements were likely to be made, damaging the reputation of each other.

Defamation is an issue of freedom of expression. It can only be legitimately limited to protect the rights of others. However, it has been established in international jurisprudence that politicians must have thick skins.

Thus Mr Orengo and Mr Kimunya should not be threatening to sue merely to salvage their injured egos.

And except where actual malice can be proved, our courts should not entertain awarding any one of them compensation for defamation.

Otherwise, that will dampen and inhibit fearless, vigorous and effective discussion of matters of public interest at the very time in our history when such debate is needed.

In any case, the search for justice is not aided by public theatrics.

Lawyers conduct their discoveries, interrogatories, depositions and requests for admissions — the preliminaries that courts require before a civil case is heard in court – quietly and without public fanfare.

Mr Orengo and Mr Kimunya and their lawyers are playing to the public gallery. They are misusing the process. Do they really want to sue in a court of law as opposed to the court of public opinion?

Either way, I have bad news for them. The public is not really interested in who defamed who. They are interested in the truth about the facts surrounding the sale of the Grand Regency.

Moreover, the Cockar commission appointed by President Kibaki to investigate the saga could, in less than a month from today, debunk or preempt the claims or arguments they are banking on to take to court, probably in a year’s time.

Even as things stand, under the common law, “fair comment” defeats any claims for defamation including when falsehoods are published or spoken about public officials and public figures so long as there is no “actual malice”.

Fair comment guarantees the freedom to talk freely about matters of public interest. The principle of fair comment is recognised, under section 70 of the Constitution.

According to the section, the rights of the individual are subject to “the public interest”.

This principle was elaborated in the world-famous 1964 case of the New York Times v Sullivan. The case ruled that even when somebody makes a false statement on a matter of public interest, he is protected if there is no “actual malice”.

And it is difficult to prove actual malice.

The cardinal test of whether a statement is fair comment is whether the author honestly believed the opinion, and whether it could be drawn from the known facts.

Besides, it is obvious that a comment is an opinion. It does not purport to be a fact.

In the case of Mr Orengo and Mr Kimunya, we do not want to shackle the public debate on an important matter of public interest for fear of defamation.

As public figures, they should develop a skin as thick as that of the rhino.

Teachers should sign performance contract

2008-07-22T06:52:00.000-07:00

Prime Minister Raila Odinga was emphatic on Friday about performance contracts for teachers and said that they, too, must sign them like all other Public Service workers.

This issue has dominated public discourse in the past weeks and requires sober examination. Teachers may have reasons why they do not want to sign the performance contract, but they are not convincing.

In fact, their position seems to be based on either inadequate or twisted information.

Perhaps there is lack of knowledge because the concept has not been fully explained or because the politics of the debate has clouded the fundamentals. Whatever the case, it is important to clarify the issues at hand.

The performance contracts, which teachers are required to sign just like all other civil servants, are different from service contracts.

The former is an instrument for gauging one’s performance within a given timeframe, while the latter is the agreement entered into for employment and which, for teachers and other civil servants, is permanent and pensionable.

However, the remarks by the Kenya National Union of Teachers (Knut) seems to confuse the two. In signing the performance contracts, the teachers will not be changing their terms of employment.

They remain on permanent terms, but most important, their productivity will be measured in a more scientific way — not only on the basis of performance in national examinations as is the case currently.

If there is any consolation, teachers are among the few cadre of workers with instruments measuring performance on a regular basis. They prepare schemes of work and lessons plan every term.

Their students are examined at the school, district, provincial and national levels every year. Schools also participate in co-curricular competitions such as sports, music and drama.

For teachers, therefore, performance contract is not new. But it is significant as it provides opportunity to systematically document what they have always done.

More fundamentally, the performance contract has now been widely accepted and institutionalised as a management tool.

All other civil servants have signed performance contracts. In the private sector, performance contracts were institutionalised long time ago.

So, teachers, as change agents, cannot afford to be left behind.

Public Watchdog: Are public officials’ discretional powers responsible for corruption?

2008-07-22T06:51:00.000-07:00

It is a sad state of affairs, indeed, when many of those charged with public responsibilities or positions of authority have no qualms whatsoever in flagrantly abusing their official discretional powers.

The exercise of ministerial and other official discretional powers has been applied in several incidences for the purpose of fostering personal gain for individuals or groups as well as for influence peddling or facilitating corruption.

The fundamental objective of allowing ministers or senior public servants legal discretional powers is to facilitate decisions aimed at supporting and protecting wider public interests. It is, however, evident that the mis-application of discretional powers is to blame for corruption in Government.

Thus, today we seek to delve into questions on the need to rein in ministerial discretions in some sort of ‘amicus curiae’ to present sustained official meddling and corruption.

Fundamental questions

Last week, as Amos Kimunya exited as Finance Minister, questions were being raised, with respect to the actions of two and possibly more ministers in the Grand Coalition Government.

In the meantime, the Governor of the Central Bank, Prof Njuguna Ndung’u, is still holed up in office amid a commission of inquiry into his conduct on the Grand Regency saga. The question is: For how long?

Nowhere else in world would this question be raised a week after a formal investigation on a public official’s conduct began.

The actions of Mr Uhuru Kenyatta, Deputy Prime Minister and Minister for Trade, in his previous responsibility as Minister for Local Government, with respect to nomination of councillors, are now under focus. Did he break the law?

Otieno Kajwang’, with respect to approval of work permits and citizenship applications in his portfolio as Minister for Immigration, is also in the anti-corruption spotlight. Did he exceed his authority?

The two ministers are not denying their actions and have stated that they acted within their respective powers, as well as legal jurisdictions. Thus, the fundamental questions are, when does ministerial discretion begin? And when does meddling or corruption start?

Do ministers or public officials necessarily have absolute powers? Are officials taking advantage of official discretional powers for vested interests, be they political or personal gains or those in their cohorts?

Why have the authorities not curbed the many discretional powers in the statutes, yet there are countless cases of abuse of authority? Is the problem the discretional powers or failure to prescribe a transparent process of how the officials can exercise such powers or both?

In the past, questions have been raised on abuse of authority and discretional powers in Government.

The Treasury and the Central Bank of Kenya have been at the centre of questionable deals that led to major corruption and loss of public funds in the Goldenberg, Anglo Leasing, audit of the national debt, currency printing, commercial bank failures due to regulatory exemptions and other questionable transactions, the latest being the Grand Regency Hotel scandal.

These reveal serious institutional, structural and governance weakness, as well as national accountability structures.

Let us now consider some solutions:

Curbing the powers

Firstly, the Public Watchdog, underscores, the need to review, curb and prescribe a transparent process of exercising ministerial or official discretion for that matter. In such a review, it must be made absolutely clear, that the discretion must be applied in support or pursuant of public interests. A transparent process must state and disclose the motivating factor and all discretional decisions must be gazetted in the official gazette, so as to facilitate public scrutiny and eliminate abuse.

Secondly, where a minister or a public official is suspected or seen to have abuse their discretional powers, their decisions must be subjected to a judicial review. In the event, that such decisions are determined not to be in public interests or be in excess of their granted powers or in pursue of vested interests, such ministers or public officials must face necessary censure and legal consequences.

Further, no one can claim to have absolute discretion, as any discretion must be exercisable, in such a manner that, no one will have right to legally question its legitimacy.

Penalties must be imposed in such a fair and objective manner so that they do not give rise to witch-hunting or be seen as retribution.

Thirdly, Parliament must now contrive new methods of controlling the rampant abuse of ministerial discretions in the collective efforts of fighting corruption.

Legislative changes must be effected with a proactive involvement of multi partisan parliamentary committees that must conduct their affairs through public hearings.

The conduct and utterances of those charged with public responsibility should always be in cognisance of the fact that they hold their position by virtue of trust bestowed on them by Kenyans.

Further, they must realise, that the power exercised by them is delegated to them by the Kenyan people and must, therefore, not act as if, they are power onto themselves.

Finally, the media must be consistently factual, resolute and report without favour or fear on all matters of corruption in order to ensure confidence and sustained public accountability.

This is a matter of great public interest.

Kap Kirwok: Mandela’s wicked humour and smile has charmed the world

2008-07-22T06:50:00.000-07:00

The celebrations to mark Nelson Mandela’s 90th birthday were launched in March and climaxed on Saturday with a private function in Qunu, his ancestral home.

Mandela, without question, is a great statesman and a beloved symbol of freedom and tolerance throughout the world.

And so it is proper for the world to fete this great son of Africa at the 90th anniversary of his birth. In the midst of the jam-packed events and festivities to honour Mandela, it was easy to miss another anniversary of even greater significance: June 14, was the ninth anniversary of Mandela’s decision not to seek a second term as president of South Africa. It was on that day, in 1999, that Mandela chose to step down despite overwhelming pressure from his supporters to continue.

He politely but firmly resisted the temptation to cling to power, saying, "the country deserved to be led by a younger and more competent leader" referring to Thabo Mbeki, the then 57-year old economist whom he had carefully mentored. By stepping down voluntarily, he bequeathed an enduring legacy to a troubled continent. His retirement was a class act and will forever serve as a lesson in mature and far-sighted leadership. After stepping down from active politics, Mandela wished to, in his words, "revel in obscurity". But this was not to be. There were millions of lives to be saved through peacemaking. And there was a war to be waged against an enemy that is worse than all wars: HIV and Aids.

But more exciting for Mandela, there was work to be done to bring the 2010 Soccer World Cup to South Africa, a task he undertook with great zeal and success. After this crowning achievement, Mandela decided, as he said, to "retire from retirement".

This time he was resolute: "Don’t call me, I’ll call you," he said, half in jest. But what is the key to understanding Mandela, the man? Clearly, it is not oratory power because his speeches have none of the fire or lilt of famed public speakers. It is not a booming voice because his is high-pitched and strident.

True, courage and quiet strength certainly have something to do with it. Ditto for compassion and what you might call strategic humility. But it turns out that the definitive character trait is something quite ordinary. It is humour with a smile. Apparently this is one of his most portent arsenals; the key to unlocking the heroic enigma called Rolihlahla Dalibhunga Nelson Mandela. Wicked humour, a strategic smile and good looks constitute the triad that people know as Mandela’s charm.

The story of the power of Mandela’s smile and humour is better told through anecdotes. At a recent special sitting of South Africa’s Parliament, Mr Tony Leon, a former political rival and leader of the Democratic Party, recalled an exchange with Mandela. The former president had referred to Leon’s party as a Mickey Mouse party to which he had hit back by calling Mandela the leader of a Goofy party. Many years later while Leon was recuperating from surgery in hospital, Mandela visited him.

"I heard a knock at the door followed by Mandela’s distinctive voice saying: "Is Mickey Mouse there? This is your friend Goofy." Desmond Tutu enjoys Mandela’s wicked humour as you can tell from this exchange reported in the summer 2008 edition of the Intelligent Life magazine. Mandela: "I am a sinner." Tutu (standing in front of Mandela): "I will absolve you!" Mandela: "If you clear the way, I can knock on the doors of heaven!"

Mandela likes to joke about his own death. He regularly promises that the first thing he will do in heaven is to look for the local branch of the African National Congress — ever the disciplined leader-follower. And then there is this now famous quote: "In my country we go to prison first — and then become president." It is said that it was with such humour, always delivered with an ice-melting smile that Mandela disarmed the dangerous Constand Viljoen, the retired general who had threatened to derail South Africa’s fragile peace in 1993 through his Afrikaner Volksfront paramilitary outfit.

There are endlessanecdotes demonstrating the deadly power of Mandela’s smile. The smile, however, can belie a fierce determination to pursue principle.

When necessary — as when he dismissed George Bush as "a president who can not think straight", and Tony Blair as "the US Foreign Minister"; or, as when he declared during his treason trial that he was prepared to die for the principle of a free South Africa — the smile would disappear from his face and in its place you would see a glint of steel.

Happy birthday Tat’omkhulu (grandfather) Nelson Mandela.

The writer is based in in the US.

Dominic Odipo: Ndingi was anything but fearless

2008-07-22T06:49:00.001-07:00

The other day I saw a curious article in The Standard on Saturday, this paper’s sister publication.

Under the headline ‘Fearless priest who lived to fight many battles’, it purported to sing the praises of retired Catholic Archbishop, Raphael Ndingi, known in his later years as Ndingi Mwana a’Nzeki.

When I came to the end of the article, I was struck once again by the power of the modern media. For the unsuspecting and the ignorant, it only takes such a well-packaged media message to make one believe anything.

To many among us who have been life-long Catholics and who have watched this Church closely since the 1960s, Raphael Ndingi cannot — repeat cannot —be described as having been a "fearless" priest, bishop or archbishop or a "man of courage".

I do not remember any occasion during Ndingi’s stint as a Catholic leader when he stood up publicly to defend or to articulate the Church’s moral leadership or to speak up when the temporal powers were manifestly going astray.

Not a single position that Ndingi took on serious national issues portrays him as a man of courage or fearlessness. Not a single position that the good bishop took marked him out as a unique or distinctive shepherd of his entire Catholic flock.

If truth be told, when we heard that Ndingi would be retiring from the leadership of the Catholic Church in Nairobi, we prayed and thanked the Almighty God for having taken this cup from our hands.

Moral giant

To be sure, it was part of Ndingi’s rotten luck that history condemned him to have to try and fill the shoes of a moral giant. Maurice Cardinal Otunga, whom Ndingi replaced as Archbishop of Nairobi, was no ordinary priest or bishop.

No one who knew both men could miss the huge differences between them. When Otunga reigned, the Catholic Church in Kenya stood tall, proud and truly independent.

When Otunga spoke for the Church, the country listened: Everybody knew that he was a priest and a bishop like no other.

It was no surprise when he was appointed Cardinal, a real prince of the worldwide Catholic community.

When the faithful needed leadership, the Catholic Church, under Cardinal Otunga, routinely provided it. Otunga did not kowtow to the political leadership or to the rich and powerful. One cannot imagine him accepting expensive gifts from individuals and then going to the pulpit the next day to preach moral uprightness or how Jesus Christ is the only Way to eternal life.

Whether the writers of that article knew it or not, there were thousands, if not millions, of Catholic faithful across the country who were disappointed, if not infuriated, by Ndingi’s ministry.

They saw him as ethnically compromised and politically partisan.

They remembered his days at Christ the King Cathedral in Nakuru when he appeared to have taken sides in the ethnic confrontations of the early 1990s.

They compared and contrasted his leadership of the Church with that of Cardinal Otunga and wanted to weep and gnash their teeth.

Fence sitter

Any reasonably informed and detached Kenyan who read the Draft Constitution of 2005 could see that it was seriously flawed.

A lot of those flaws directly affected the Catholic faithful. But when Archbishop Ndingi was asked to state the Church’s position on that draft before the referendum, he chose to sit on the fence. Here was an issue of critical importance to millions of Catholics. But when they looked up to their leadership for guidance, they found nothing.

The ‘fearless’ priest left them on their own. The good shepherd had abandoned his flock.

When a major political deadlock loomed in the Philippines, Jaime Cardinal Sin, then the Archbishop of Manila, did not stand on the fence or abandon his flock.

He told the Catholic faithful to oppose the government’s proclamations and, if necessary, put their lives on the line.

(With Catholic leaders under persecution from Philippine dictator Ferdinand Marcos, Sin played a leading role in the People Power Movement, a four-day uprising in 1986 that deposed Marcos – Ed.)

That is how a fearless shepherd of Catholic flocks is expected to behave when he knows where the right path lies.

If Ndingi did not diminish the Catholic Church in Kenya, then the Church certainly diminished him. History will record that his reign was both undistinguished and uninspiring. We know it will, because we are already writing that history.

The writer is a lecturer and consultant in Nairobi.

Rosemarie Onyando: Common sense and integrity have given way to impunity

2008-07-22T06:48:00.000-07:00

An article appeared in The Times London last week mourning the death of common sense. In an interesting article the author argues the future of commonsense became bleak when bureaucratic red tape was allowed to rule the lives of citizens. Locally, common sense died and has been buried in an unmarked grave for decades now. The death of common sense passed quietly. You know common sense is dead by the chaos on our roads — when matatu drivers and Kenyans compete to break every conceivable traffic law. Common sense died right after independence when the culture of entitlement set in and Kenyans started stealing ingredients of the national cake. Death of his siblings common decency, courtesy and basic good manners followed the demise of common sense.

But it is the death of integrity and rise of impunity, his brothers corruption and arrogance and their vicious side kicks dishonesty, injustice and nepotism that demonstrate we are in dire straits. Impunity has been with us a long time. During the colonial period it was associated only with white colonialists and African home guards, who combined forces to steal, pillage and murdered natives in orgies of violence that make Mungiki look like angels.

After independence, impunity was strengthened. Together with greed, dishonesty, open theft and tribalism it installed it firmly.

During the Nyayo era, impunity became bolder, extending its tentacles beyond the political class to the citizenry. The rule of law was trashed and Kenyans unanimously agreed integrity and her relatives truth and justice had no place here. Corruption and mediocrity became a way of life. We put chalk in our drinking water, instigated ethnic cleansing, constructed torture chambers and insisted the only way to exercise democracy was through mlolongo.

Human rights activists squeaked and were arrested, tortured and even killed. Semi-illiterate young men conspired with Government officials for a grand plunder of the Central Bank. Then in 2003, Narc came to power in a union that brought together good governance and human rights crusaders with opportunists.

This union would spawn a highly virulent and resistant breed of impunity. Buoyed by lack of action against brother corruption, a rejuvenated impunity took his place at the heart of Government. Emboldened by the emerging greed and dishonesty among professionals, clergy and citizens, it would soon start a feeding frenzy.

You knew integrity did not stand a chance when ghosts started returning money to Government and thieves were routinely elected to Parliament, when stray bullets struck right between the eyes and anyone killed by police became a most wanted criminal and leaders openly displayed obscene wealth even as citizens starved. You know impunity is in charge when IDPs squat in camps while their dispossessors sit in Government. Now impunity sits prominently on a golden throne guarded by arrogance, tribalism, and nepotism.

The writer is the Executive Director Centre for the Study of Adolescence.

Abdulahi Ahmednasir: The West must remove the log in its eye before going for al-Bashir’s

2008-07-22T06:47:00.000-07:00

The indictment of President Omar Hassan al-Bashir of Sudan by the prosecutor of the International Criminal Court Luis Moreno Ocampo has raised outrage and consternation in certain quarters.

On July 14 Ocampo, under Article 58 of the statute of the court, issued a 10-count charge of indictment for genocide, crimes against humanity and war crimes against Al-Bashir. He alleges he masterminded and implemented a plan to destroy the Fur, Masalit and Zaghawa ethnic groups of the Darfur. Ocampo in the indictment states that al-Bashir was politically motivated but cleverly used the alibi of counterinsurgency when his real intent was genocide.

The Sudan government dismissed the allegations as, “the mother of all fabrications”. The matter is now before the judges of the Court who, depending on the evidence placed by the prosecutor will either indict al-Bashir or dismiss it. This is not the first time that a Sudanese leader has been ordered to surrender by a Western power or institution. In 1883, with the Mahdi army in full mach to Khartoum having overrun most of the country under Mohamed Ahmed Al Mahdi, the local British governor wrote a simple demand letter to the Mahdi with a polite request to surrender.

Al-Bashir’s indictment is precedent setter. This is the first time a sitting President of a sovereign state has been indicted by the Court. Two former heads of state, Charles Taylor of Liberia and Siberia’s Slobodan Milosevic were tried by other international tribunal. The indictment of Al-Bashir however raises troubling questions. On face value, the indictment is a positive step that sends a strong signal to all dictators in the world that the conduct of their regimes within their borders will have serious international ramifications. It also puts on notice governments that undertake genocidal activities in the name of counterinsurgency.

The indictment will only advance human rights adherence across the board and stop impunity if international law is applied without real politic and the West stops the hypocrisy that defines its relations with the rest of the world. As most of the world knows the court’s decision was political. In 2005 the Security Council of the United Nations mandated the prosecutor of the court to investigate the conduct of the Sudan government in Darfur.

SECURITY Council

Strangely, only two permanent members of the Security Council that made the request are state parties to the Rome Statute of the Court. America, Russia and China don’t recognise the competence of the court. Thus three permanent members of the Security Council can order the court to investigate other countries but will never allow it to investigate them.

Since the court began to operate, it has indicted 12 suspects, of whom only four are in prison. All 12 are Africans. Four of these 12 are from the Democratic Republic of Congo, five are members of Uganda’s Lords Resistance Army. Jean Pierre Bemba Gombo has been indicted at the request of the Central African Republic while three are from Sudan. This is a court that in essence is made for Africa and will in the foreseeable future either indict African heads of state the West does not like or those African states don’t like. Genocide, war crimes and crimes against humanity are not committed only in Africa.

Western propaganda

It is not in doubt that the people of Darfur have suffered at the hands of the Khartoum regime. About 2.5 million are internally displacement, while similar numbers have crossed over to Chad. Western NGOs claim that about 300,000 people were killed by government forces or militias supported by government like the Janjaweed.

Whereas Sudan must be made to account for crimes against its citizens, the Western involvement is not out of true love. The history of Sudan doesn’t show one such incident of love. The Battle for Omdurman in 1898 that led to the defeat of the Madhi Army in fact sowed the brutal seed that internalised genocide and mass death in Sudan. The British army under Major-General Herbert Kitchener defeated the Mahdi army, looted and razed to the ground the city of Omdurman and massacred everyone insight. .

If the West is genuine about prosecuting al-Bashir, then the double standards that has destroyed the integrity of international institutions and undercut their efforts must stop. America must submit to the jurisdiction of the court.

—The writer is a lawyer and a former Law Society of Kenya chairman

Ali A Mazrui: What was the cord between Nyerere and Obote?

2008-07-22T06:46:00.000-07:00

Nyerere’s involvement in Uganda affairs was direct and drastic. In 1971, did he convince Milton Obote to leave Uganda and go to Singapore to attend the conference of heads of state and governments?

Obote had hesitated about going to Singapore because of the uncertain situation in Uganda. Did Nyerere convince him that he was needed in Singapore to fight Prime Minister Edward Heath’s policy towards apartheid South Africa?

Obote’s decision to go to Singapore was disastrous for himself and for Uganda. In his absence, Idi Amin staged a military coup d’etat and overthrew Obote. Eight years of tyranny and terror in Uganda ensued.

I never succeeded in getting either Nyerere or Obote to confirm that it was Nyerere who convinced Obote to leave Uganda for Singapore. But we do know that Nyerere was so upset by the coup that he gave Obote unconditional and comfortable asylum in Tanzania.

Was Nyerere feeling guilty for having made it easy for Amin to stage a coup by diverting Obote to Singapore?

I shall always remember Nyerere’s speech in Tanzania upon return from Singapore. I was in Kampala listening to him on radio. He turned a simple question into a passionate denunciation of Amin. His repeated question was “Serikali ni kitu gani (what is a government)?”

This simple question became the refrain of denouncing usurpation of power through a military coup. It was a powerful speech to his people and against the new ‘pretenders’ in Kampala.

I eventually visited Obote in his home in Dar es Salaam during his first exile. We discussed Amin much more often than we discussed Nyerere.

One of the major ironies of my life is that Obote, then President of Uganda, introduced me to my own founder president of Kenya, Mzee Jomo Kenyatta before Amin’s coup.

In 1979 Nyerere paid back his debt to Obote. His army marched all the way to Kampala and overthrew the regime of Amin. My former boss at Makerere, Yusufu Lule, succeeded Idi Amin as president of Uganda. But Nyerere was so keen on seeing Obote back in power that he helped to oust Lule.

Was Nyerere trying to negate the guilt of having encouraged Obote to go to the conference? Is that why Nyerere was so keen to see Obote back in the presidential saddle of Uganda in the 1980?

Africanist audience

Unfortunately, his second administration was catastrophic for Uganda. Obote lost control of his own army and thousands of people perished under tyranny and war. Was Julius Nyerere partly to blame?

“The two top Swahili-speaking intellectuals of the second half of the twentieth century are Nyerere and Ali Mazrui.”

That is how I was introduced to an Africanist audience in 1986 when I was on a lecture-tour of the US for the promotion of my television series, The Africans: A Triple Heritage (BBC-PBS.)

I regarded the tribute as one of the best compliments I had ever been paid.

In the month of Nyerere’s death (October 1999), the comparison between the Mwalimu and I took a sadder form. A number of organisations in South Africa had united to celebrate Africa’s human Rights Day on October 22, 1999. Long before he was admitted to hospital, they had invited him to be their high-profile banquet speaker.

When Nyerere was incapacitated with illness and seemed to be terminally ill, the South Africans turned to Mazrui to be his replacement. I was again flattered to have been regarded as Nyerere’s replacement. However, the notice was too short, and I was unable to accept the South African invitation.

Over the years Nyerere and I met many times. Obote was one of the formative influences of my early life, in spite of our tumultuous relationship.

Ngugi wa Thiong’o and I were marginalised by the Kenyatta regime in spite of the fact that we wanted to become literary biographers of Kenyatta. When Daniel Moi was still Vice- President, I was considered as his possible speechwriter in order to strengthen his credentials for the presidency. I never played that role.

When he became president, his regime and I had an ambivalent relationship.

With Nyerere and I, it was a bond of genuine ups and downs. Nyerere was once angry with me because I had written a citation for an honorary doctorate, which was too long. The honorary doctorate was for an elderly American academic, and Nyerere was awarding the degree as the Chancellor of the University of East Africa, which at that time consisted of the three campuses of Makerere, Nairobi and Dar es Salaam.

My oration was indeed too long. He did not speak to me that evening after the ceremony. He deliberately snubbed me.

I had not struck the right balance and the Mwalimu chastised me.

John Mulaa: Obama’s ego and his cultural ties

2008-07-22T06:45:00.000-07:00

A little unsavoury bit of the otherwise fetching Senator Barrack Obama’s narrative is gaining traction among segments of the commentariat.

Those predisposed to find fault and are unlikely to vote for the senator anyway.

It is about Obama’s alleged huge ego. His critics, on the right and some in the centre, are compiling a list of instances they claim reveal that the charismatic presidential hopeful is, well, too full of himself for his own good. They cite his dietary habits — the words abstemious and picky pop up quite a lot — his alleged certitude about his own likeability, and his tendency to praise himself, half in jest sometimes but mostly seriously.

In a recent column on the subject titled “Ego-Bama, Swallow some of that Pride,” conservative writer Jonah Goldberg brandishes what he claims are instance after instance of Obama’s ego, sometimes only thinly veiled.

“Perhaps he’s an adulation junkie,” Goldberg writes.

“Maybe the nourishment Senator Obama receives from popularity is actually causing him to ratchet up his pursuit of more and more praise just to get the minimal fix he needs,” he continues intent on causing as much comfort as possible about the object of his dislike – Obama.

Goldberg suggests Obama’s decision to accept his nomination in a 76,000-seat Invesco Field in Denver is further evidence of the grandiosity. The Pepsi centre, the original site of the convention, would be too small for him.

More proof: The decision by Obama to hold a rally at Germany’s Brandenburg Gate, in the near future “even though he is not a head of State yet.” Goldberg approvingly quotes British commentator, Mr Dominic Lawson of The Independent newspaper, who observed recently Obama is “a man of stunning articulacy, but also stunning self-regard.”

“In fairness, writes Goldberg, the cause of Obama’s “swollen” ego might simply be a case of celebration of the fact he “has been remarkably successful going from long shot for the nomination to odds on favourite for the presidency. This sort of thing would produce cockiness in anyone – particularly politicians who are arrogant by nature and necessity.”

Goldberg’s comments are not surprising. They reflect his axe to pick with anyone who is liberal. Perhaps there is a simple explanation for occasions when Obama has engaged in self-praise, especially of some of his speeches.

Stopping the music

“They are pretty good,” he has said of them more than once, a correct assessment that a less cocksure person would leave for others to say. The explanation has to do in part with Obama’s personality, achievements, and inheritance, particularly the Nilotic part of it. About the latter, I know something albeit, anecdotal.

One aspect of Luo culture that fascinated me back in the village was a session of self-praise at musical events. It was called stopping the music – chungo thum.

A fellow, who desired to massage his or her ego a little bit, or extensively, would buy the opportunity by paying the guitar player or the gramophone jockey to stop the music for a few minutes to allow him to talk about himself. Fidelity to actual accomplishments was overlooked; the self-praiser was free to say anything he liked about his prominence, mostly imagined, but who cared.

The sessions accomplished the intended purpose, which, in hindsight, was to build egos by allowing for a few minutes of riotous expression.

A legendary boaster from the neighbouring village, the impeccably dressed Ochieng’ Rich – he always wore meticulously pressed white shirt and shorts, and sneakers but I have no idea how he came by the name Rich – would purchase lengthy segments of boasting session and regale everybody with descriptions of his attire and cleanliness, and purported wealth.

He would then end with a zinger about how all the maidens, who had sneaked from their homes to attend the dance, would throw caution to the wind when they returned home and proudly inform their parents they spent quality time with one Ochieng’ Rich at the dance.

It was all harmless banter even if in the end it built a great deal of confidence in the fantasists.

There is no way Obama could have culturally experienced this. But to some faultfinders and even some supporters, he comes across as somebody who did not need to. Somehow, he acquired it. And see where it is likely to lead him: The top of the mountain.

Last July, Obama explained to reporters he would eventually overtake Mrs Hillary Rodham Clinton in the polls because “to know me is to love me”.

Some months later, according to The Associated Press' Ron Fournier, he proclaimed, "Every place is Barack Obama country once Barack Obama's been there." Need more proof?

XN Iraki: Our learning institutions should strive to produce future leaders

2008-07-22T06:44:00.002-07:00

Does it matter where you go to school? In the United Kingdom, passing through Eton College (a high school) or Oxford and Cambridge universities increases your chance of being a leader.

In Japan being an alumnus of Waseda, University of Tokyo or Keio, gives you an advantage if you aspire to be a leader.

In America, going through any of the seven Ivy League Universities ensures your path to leadership is smoother and shorter. Getting into these universities is not accidental, parents start grooming their children early in life by taking them through high cost elementary and high schools. You may call that social engineering but it works.

There are few countries that don’t have flagship institutions where the next generation of leaders or elite is prepared. Some suggest this approach to leadership breeds conformists out to maintain the status quo.

In developed countries most of these elite institutions have developed elaborate admission criteria involving intellect and your socio-economic background to reduce inbreeding by increasing diversity.

History, more than anything else plays a role in determining the evolution of elite institutions; they are often the oldest, with unique traditions and a solid base of successful alumni who ensure the ‘brand’ is maintained.

Where are we in Kenya? What are our elite institutions?

After Uhuru one school dominated senior Government and private sector positions. It still does to some extent. For instance; Attorney General, Chief Justice, and several ministers all went through that school.

When the National Rainbow Coalition came to power it appeared Makerere and Mang’u alumni had a higher probability of getting a plum job in Government.

The shift to market economy in the 1990s created a new breed of elementary and high schools to compete with the old and well established. It replaced history as the catalyst to elitism. For once, private schools led in Form Four exams.

Discipline and philanthropy

The next logical theatre of competition is going to be at the university. Currently, public universities still dominate and take the best students, because they have lucrative courses.

Will local private universities one day hold the position of Ivy League Universities in the US or Oxbridge in UK? I think so; but their attempt to do that was slowed by the introduction of the parallel degree programmes.

But they have fought back by building a reputation of discipline and philanthropy. They have also outdone public universities in public relations. They have lately taken another bold step that may accelerate their rise to the top — building global alliances with top universities and corporations.

As they do that some public universities are going local by ‘annexing’ or collaborating with local colleges. Which strategy is superior?

Another catalyst to emergence of elite institutions is entrenchment of class-consciousness.

For a long time, local universities were ‘classless’; you could go to class with a minister’s daughter and even date her.

Which institutions will spawn the new elite and produce a generation of bold leaders?

Will the new elite institutions be catalysts to socio-economic growth? What type of graduates will they produce? Will they be better leaders; more willing to confront our national problems and inspire the next generation?

—The writer is a lecturer at the University of Nairobi, School of Business

James N Kariuki: Agricultural revolution needed in the country

2008-07-22T06:44:00.001-07:00

After his great strides in the US civil rights movement of the 1960s, Dr Martin Luther King started to emphasise anti-poverty politics.

As usual, his reasoning was basic and down to earth: All the civil rights of the world are empty and meaningless unless a man is able to feed himself and his family.

Can the same be true of nations? No nation is worthy of the name unless it can feed its people?

After service as UN’s Secretary-General, Kofi Annan chairs Alliance for Green Revolution in Africa (Agra), based in Nairobi. The organisation’s objective is to assist Africa advance in agriculture; locate itself where it can feed itself. Annan has given credence to the claim that agriculture is central to the destiny of Africa.

South African Herbert Vilakazi has also been on a crusade to impress upon Africans that an agricultural revolution is a must. While conceding that the rising price of oil is a cause of the current global economic crisis, he insists that the “fundamental economic problem of Africa is that it has not initiated and implemented an agricultural revolution.”

According to Vilakazi, failure to base post-colonial Africa’s development on agriculture has derailed the continent. Declining immune systems have opened doors for TB and HIV/Aids. Additionally, collapse of rural economies has enhanced the “syndrome of poverty, unemployment and crime in the inner cities”.

Exactly a year ago, we told, in this space, the story of Than Trong Phu, one that is worth repeating.

Phu left Ho Chi Min City four decades ago, the last night that the town was Saigon. That was when the US scrambled out of Vietnam after losing a protracted and senseless war.

The man-in-charge

Phu was a teenager then and he grew up in California. Now he is back in Vietnam, helping American-based computer multinational corporation, Intel, penetrate his motherland. Does that sound like a contradiction in terms? Not exactly.

Intel’s social sensitivity to the Vietnamese society is guaranteed by the fact that Phu is the man-in-charge of its operations there. He has the interest of the Vietnamese at heart; they are his people. Indeed, his life’s calling now is to bring Vietnam to the forefront of the digital era.

Meanwhile, Phu embraces Intel’s new business ethos: Co-operate with the government-of-the-day. He also knows that first on the wish list of that government is to enhance Internet use all over Vietnam as a step toward transforming the country into a modern exporter of information technology

The Vietnam model seemed viable enough to be recommended to Kenya relative to agriculture. Computer know-how in Kenya and its Diaspora is sophisticated enough to connect farmers from the Coast to Lake Victoria and points in-between. Such a network would facilitate sharing agricultural experience on continual basis.

The major challenge would be installing the Internet in rural areas, providing basic computers and teaching the ABCs of using the Internet. But then, what are governments for?

True, Jomo Kenyatta University of Agriculture and Technology (Jkuat) undertakes worthy agricultural projects on piecemeal basis.

In the euphoria of my enthusiasm, I contacted a high-profile Kenyan with a request to open doors for me to submit this proposal to either Annan or the Vice-Chancellor of Jkuat. My contact was not impressed; he questioned my credentials for the task since I am neither an agriculturalist nor a computer wizard.

I intended to make a case that my claim was not in the realm of computer technology or agricultural know-how. I was merely a dreamer; my input was in the domain of an idea whose time had come. But before I could make my case, Kenya imploded in post-election violence.

In retrospect, the violence should have boosted rather than stifled enthusiasm for this project. A major grievance of the ODM was uneven regional development of Kenya. Since Kenya is an agricultural country, it makes sense that corrective measures should embrace agriculture. To establish that anchor, a network of farmers sharing information on national basis sounds like a convincing beginning.