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Opinion

The Effect of Electoral Boycotts: Going Forward, We Are Now Hostages Of Fortune And Why Negotiations Between Raila And Kenyatta Is The Only Way Out.

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Thousands of opposition supporters hits the streets on anti IEBC demos, leaders have announced daily protests next week throughout the country.

By Wachira Maina

We’re in a political crisis not a legal one, in spite of what the talking heads are saying.

The Legal Position: In spite of language in the 2013 Raila Odinga petition that suggested that the withdrawal of a candidate at this stage of an election could lead to fresh nominations I think that on balance the better view is that the IEBC will now treat this as an uncontested election and proceed to declare Uhuru elected unopposed. (The issue of fresh nomination was not an issue in that petition so, strictly speaking, what the court said then is not binding). There is, of course, the decision of the high court- still awaited- in the Ekuru Aukot case -challenging the anointing of Uhuru and Raila as the only candidates eligible to run on the 26th of October, 2017). This could still lead to other candidates being allowed to compete. God knows President Kenyatta now desperately needs this to go Ekuru’s way to give a bland simulacrum of formal legitimacy to what surely is a political curve-ball, irrespective of what Jubilee insiders might now say.

The Coming Institutional Decline: This brings me to the real issue. In my view, this is no longer a legal issue. In fact, further involvement by the court in this issue- whichever way- is not likely to resolve the underlying political problem.

As I see it what we have here is continuing institutional decline of a state which, over time, has become a pure instrument of political struggle and vehicle for pursuing elite interest. If you win power in Kenya, you can bend the law and the economy to your personal interest. This seemed to have changed somewhat under Kibaki but the state as instrument of the ruling power is back with a vengeance.

What we are seeing now is a country on the verge of becoming a ‘warlord democracy,’ a country in which who gets into office will be determined through violence – whether official violence or chaos by private militia and gangs- even though such violence will be marketed publicly in the name of the people. The economy has already been ‘criminalised’ and is bent to those in power and their cronies: as I said elsewhere Kenya is a contractor democracy in which commercial transactions are both personalized and clandestine, defeating all the theories of an open market. (Think- if you doubt our criminal economy- of the runaway corruption, open money laundering and wanton budget raiding at both the national and county level etc). The politics has, so far, been straddling between the lawful ( Sometimes we see compliance with rules and obedience to court decisions) and the unlawful (There is still open vote buying; the opponents are sometimes murdered- especially at lower levels and the hiring of gangs to break the knee-caps of the recalcitrant or the deployment of riot police in non-cmplianct regions).

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In the next phase of this dangerous but evolving game, there will be even less pretence that we are playing normal politics. We shall have the unholy trinity of a) criminalized economy; b) warlord politics and c) a deeply polarized civil society (with some in the marginal areas heavily armed with guns smuggled from regional conflicts). From an economic perspective, the immediate risk is both domestic and external. Domestically, the contraction of economic activity will weaken government revenues, increase unemployment- especially youth unemployment- and ratchet up social stress, all destabilizing factors. Externally, as the government continues to clobber its opponents even as its revenues shrink, our sovereign rating will be further down-graded, making the interest payments on our growing external debt even more burdensome. Sooner than later we shall be talking to all the guys we hate talking to so much: our creditors, the IMF, the World Bank and other members of that usual gang.

The Limits of Law: Will the NASA boycott work though? As a general matter, I believe, that we lawyers are all too often seduced by our faith in the ability of law to solve social and political problems. Behind every constitution, I like to warn myself, is a fundamental moral principle, the commitment that a constitution will always be obeyed even – especially, I should say- when such obedience hurts our vital political interests. Judge Learned Hand once said that if liberty dies in the hearts of men and women neither the Constitution nor the Supreme Court can save it. Our problem right now is that our commitment to legal instrumentalism leaves us stranded on the horns of a cruel dilemma. We have an elaborate constitution but few citizens and leaders are committed to its robust enforcement. In fact, all the social media lawyer blathering by partisans of either side that “the law is clear” are just fig-leafs that mask competing power claims that have slender constitutional legitimacy. A heightening of the heat not a shedding of the light on the problem, if you see what I mean.

The Effect of Electoral Boycotts: Going forward, we are now hostages of fortune. Electoral boycotts are notoriously unpredictable. As a general point, such boycotts are important not because of their effect on the election results but because of their potential effect on the legitimacy of government if the boycott is effective.

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A boycott can lead to 1) a terminal political crisis for the incumbents (as happened in Bangladesh in 1996); 2) no immediate effect on incumbents but a destruction of the opposition (as happened with Blaise Campaore in Burkina Faso in 1991 and Gnassingbe Eyadema in Togo in 1993); 3) a broader constitutional crisis- (as happened in Thailand in 2006- though this was a boycott of the announced election results. The elections were declared invalid by the constitutional court. This led to the resignation of the Electoral Commission with some Commissioners being later jailed for illegalities. A fresh election was then held at the end of that year, 2006).

The second part of outcome 2 – the destruction of the opposition- does not seem likely in Kenya. Elections in Kenya tend to be like an ethnic census. I don’t see NASA’s core support dissipating or crossing over to Jubilee, especially when the situation like the current one exists. Meaning that we are probably looking at a deepening political crisis in the medium-term, hence my fear that we will slide into a “Warlord Democracy” sooner rather than later.

The Brutal Truth: There is NO long-term solution that does not involve either 1) Uhuru and Raila agreeing a political solution (I don’t know the shape and content of that. I do not buy the argument that NASA has all along been playing this game to force a coalition government; or 2) failing that, Raila would have no choice but to up the ante if he wants to keep his base intact. Unfortunately, Uhuru is temperamentally incapable of restraint. His pride is easily wounded when he feels slighted and right now he seems to feel that the opposition do not see him as “Commander-in-Chief”. He will almost certainly call out the police and brutalize Raila’s base. Unfortunately, few countries can sustain a cycle of protest and violence beyond a month before the police and army break down into partisan political factions. If I am right about this, then one of either Raila or Uhuru will eventually buckle. When that happens, we shall revert to either option 1 – negotiations – in which Uhuru is the weaker party- as is always the case when an incumbent is forced to make concessions – or Government resistance with more aggressive repression targeting all regime opponents- in the short-term, this might politically marginalize Raila but it would take the country back to the early 1990s, which would incinerate any legacy that Uhuru thought he had secured.

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We are in this situation because the antipathy between the Kenyattas and the Odingas has completely clouded either side’s perception of what a reasonable way out is. The two are a phone-call away from each other. I am sure they have each other’s cellphone numbers. And still they bellow at each other through TV microphones and loud-hailers at political rallies. The problem is that their respective political bases – egged on by their social media nutters- see the other side exactly as the two see each other: grasping and double-dealing ogres with whom it is impossible to strike a deal that could be honored. Uhuru’s core support is not pro-Uhuru, some are in fact viciously critical of him, they rather are rabidly anti-Raila. Raila still has more ‘religious’ support than Uhuru but this, too, has somewhat dissipated over time. Yet such support as he still has is hysterically anti-Uhuru. They too are shouting at each other across a chasm that might yet swallow the county. Thus does Kenya suffer from a family feud that increasingly begins to look like a blood feud. I despair.

(NB: There are some who think that I am exonerating the IEBC from culpability for running a monkey of an election. I am not. However, the form that the crisis has now taken is unquestionably driven by leaders. Once the Supreme Court delivered its judgment, it lay with the politicians to get the IEBC problem sorted out. Uhuru and Raila cannot sort IEBC out because they won’t talk to each other even though they both know that Kenya is hurtling to a terminal crisis. Of course, the structural cause of all this is our screwed up ‘state” as well as the terminally decrepit electoral system. However, the proximate cause is the politicians. And no, the structural problems cannot be addressed before the 26th of October 2017!)

Writer is a lawyer and seasoned columnist. 

 

Opinions are writers own and don’t necessarily reflect those of Kenya Insights. 


Kenya Insights allows guest blogging, if you want to be published on Kenya’s most authoritative and accurate blog, have an expose, news, story angles, human interest stories, drop us an email on [email protected] or via Telegram

Kenya West is a trained investigative independent journalist and a socio-political commentator on matters Kenya and Africa. Send me tips to [[email protected]]

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Investigations

Dear DPP Noordin Why Is Kenya Pipeline MD Joe Sang A Free Man With Looting Evidences

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KPC MD Joe Sang addressing a press conference

Nobody can stop reggae when it comes to the new DJ in town, DPP Haji but it seems somebody can reduce the volume. We’ve seen parastatals chiefs arrested and arraigned in courts over corruption scandals and consequently bundled out of office.

Kenya Pipeline’s top management led by MD Ken Tarus whom were engaged in lightening embezzlement of public funds and abuse of office, were all arrested and sent home. It was the last large scale arrest that did not only restore hopes in the ODPP but gave a relief to the public who’re the victims of corporate exploitation.

Billions have been siphoned out of Kenya Pipeline and scams endlessly exposed. This site has been consistent together with other publications in highlighting the high scale siphoning and loofingbof public funds at the KPC offices.

KPC MD Joe Sang who’s a relative to the Energy CS and who’s appointment has been challenged with petitioners saying it wasn’t procedural and out of nepotism, is a man in focus not only over his overnight wealth acquisition but his network within the company that has now been losing billions to the cartels.

According to an intelligence report KPC MD Joe Sang-Nephew Hillary Langat 0722957996 is the lead money collector for KPC MD whose phone contacts can be traced to all KPC supplier who have been paid or awarded contracts.

He’s net worth is over a billion under KIMBELL INVESTMENTS Limited and LENKIM SERVICES LTD he hold the property on behalf of KPC MD JOE SANG

It doesn’t make any logical sense why the DPP is taking time and giving more time to KPC crooks to cook and evade their net. Sang continues to slay on tv screens denying corruption allegations in a standard style of all corrupt officials.

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According to our sources both at the DCI and at KPC, detectives had already raided the KPC offices and collected crucial evidences that would’ve been useful in preparing a case.

DCI Kinoti is on record saying the investigations are underway and one wonders why it hasn’t taken the speed of NYS thatbhad suspects rounded up in a short while. The thieves involved in the KPC theft that’s the top management are all known.

A serious lobbying has been going on behind the scenes as we gather from our sources to have the authorities go down on the investigations. Senior politicians both in Goverment and on retirement from Kalenjin, have been lobbying for the MD and tip management mostly the same community, to be spared and from the looks, the talks are paying off. Nothing is being heard of the investigations.

A number of DCI sources had intimated to Kenya Insights a few weeks ago on the completion of investigations and how all the files were ready and forwarded to the ODPP for arrests orders before cold water went over the case.

We’re now urging and reminding the DPP and DCI that we have our eyes on this case and other corruption scandals thriving in the public offices to be taken into full considerations. We want to assume that your competent offices haven’t been swallowed into petty political bargaining to let thieves go free.

It will be high class of double standards to implement the law selectively and go against your words that there are no sacred cows. We also would want EACC not to just watch from the fence but deeply scrutinize the wealth of KPC top bars. A lifestyle audit will unearth major scams in the company.

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Sear Noordin, we want to see the Sangs and mysterious lads in the KPC looting like David Muge aka MR.MD and every single person who’s stolen a cent at Kenya Pipeline, Arrested and arraigned in the courts. We don’t want to see criminal characters running key parastatals as KPC. We therefore demand for arrest and successful prosecution of MD Sang and his henchmen who must immediately be sacked. No sacred cow, you said Mr. Haji, over to you sir. We’re watching. The hashtag is #ArrestJoeSang


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Opinion

Squandering Goodwill: DPP Noordin Haji Should Choose If He’s Working For Uhuru Or Kenyans.

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DPP Noordin Haji.

Yesterday Kenyans were disgusted to see our mother Philomena Mwilu being arraigned in court over frivolous charges, even when the real criminals are just moonlighting across 5-Star hotels in Kenya.

This comes under the back-drop of last year’s incident, where her driver was shot dead, by elements believed to be working with the Jubilee regime last year, something which indicates that she’s a marked woman.

The response to this persecution has been overwhelming with top lawyers lining up in the defence of the Deputy Chief Justice, with prominent critics like David Ndii and Miguna Miguna casting aspersions on the character and professional impropriety of the DPP.

That this case had been purposely “leaked” to Githeri Media Nation Media Group, shows that it was being manipulated from Statehouse, because the notorious media house editorial policy is drawn up from there.

The DPP and the DCI need to figure out of they are working for President Uhuru Kenyatta or the Constitution of Kenya. Uhuru can be a very petty and vindictive character who reacts on the slightest impulse, and his input to such important offices can be catastrophic. We remember vividly his threat to the Judiciary when he yelled publicly under the influence of alcohol that “we shall revisit”.

We cannot have someone who is as emotional and irrational as Uhuru, tainting the independent offices of the DPP and DCI.

I also remember when Mike Sonko was setting up Kiambu Governor Ferdinand Waititu, he expressly said that Uhuru is controlling/manipulating arrests. What nonsense is this?

DCJ Mwilu when she appeared in court while flanked with a team of 32 senior lawyers led by SC Orengo, Khaminwa, Kalonzo amongst others.

DPP cannot purport to arrest the Deputy Chief Justice, as Kirinyaga Governor Anne Waiguru cat-walks free, as she writes intimidating letters to the EACC, as if they report to her. Kenya Revenue Authority (KRA) the most corrupt institution in Kenya, cannot purport to be pursuing Philomena Mwilu over peanuts, yet sham “investors” like Vimal Shah and Somali businessmen are evading taxes in the billions.

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If you want goodwill, go for known villains. Don’t lump fictitious charges on soft-targets who are victims of the political alignments in the country. It is Kenya’s taxes which are funding these offices, not Brookside Dairies or Heritage Hotels money.

We won’t clap for you when petty thieves of 900,000 Kshs are arrested by your office, when known thieves are walking scot free. The DPP cannot commit his scarce resources to chase for petty thieves of scams below 10 Million and expect public goodwill.

People must now justify their continued stay in office. When you commit over 10 officers to hunt down 6 suspects who embezzled 900,000, does that even make economic sense? Can you spend such expensive man-hours chasing for peanuts? DPP and DCI you need to get your act together.

The people who have “eaten” Kenyans money are well-known. They have built flats, malls, stashed the money abroad and hidden it in their houses. You should be giving us the progress of the recovery of these assets first, and not chasing petty thieves of 900,000. We won’t allow our resources to be wasted in pursuit of petty offenders.

Tell us how far you’ve reached in repossession of Evans Kidero’s assets. Tell us which Governor is going to be successfully tried and convicted. Nab the MP’s who were bribed to endorse a sugar report. Go for the people who brought down Chase Bank and Imperial Bank Limited. We want to see blood of the upper-echelon of corruption.

We are being told that Deputy President William Ruto’s PA Farouk Kibet is being arrested on Friday. That one will be a welcomed image because he represents the face of corruption and impunity. But now when you chase a motherly-figure like Philomena Mwilu, you’re eroding all the gains you’ve made so far. We want Alpha-Females who walk as if they own Kenya, to be apprehended.

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My only advise to the DPP and the DCI is to choose your battles wisely. If you needed to shake the Judiciary, you could’ve started with the judge Tonui who took a 200 million bribe from Evans Kidero.

Secondly, those independent office-holders should desist from being used by the petty and emotional clowns working at Statehouse. We are in this current mess because Uhuru consciously allowed corruption to thrive, yet now he’s acting as if he doesn’t know where it came from. Selective-amnesia.

If Uhuru wants to clean up the mess he created, he must do so within the confines of the constitution and not under the influence of his political-biases and petty emotions. Kenyans have no time for his tantrums and petty emotions. His cheap theatrics should be restricted to White House, where he unleashed his fake St. Mary’s British accent.


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Opinion

Daily Nation’s Role In Arrest Of DCJ Philomena Mwilu As David Ndii Claims NIS Edits DN Stories Nowadays

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NMG’s Editor-in-Chief Tom Mshindi.

From Monday, one thing has been consistent with the Nation Media Group’s DN. The splashing headlines have been on a roll. Leading writers at Daily Nation; Mutuma Mathiu and John Kamau are the familiar faces in this. In what is a clearly well orchestrated plot to build a narrative and set an agenda, the popular newspaper seem to have been favorited in this ploy. Media enjoys the monopoly of agenda setting.

Monday, the splash headline on Daily Nation read, ‘Supreme Court judge targeted in corruption purge’

The Monday headline when the narrative started building up.

“A Supreme Court judge faces imminent arrest and prosecution for corruption in a devastating and dramatic escalation of the government’s campaign against graft. The arrest of such a high-ranking judicial staff, unprecedented in Kenya’s history, will be the culmination of weeks of investigations into brazen corruption at the Judiciary, and is likely to send shock waves throughout the institution.” It read.

“The Nation has followed this case for months after it learnt that the judge had been reported by the Kenya Revenue Authority to the Director of Public Prosecutions over the suspicious movement of large sums of money in and out of bank accounts.” The part of six months got me giggling.

They had the fine details of the entire case probably on tips from the DCI or ODPP who were on top of the case. How they got the information is not important what’s key is, they did not only instill fear in the judiciary corridors but at that particular moment they had put entire Supreme Court bench on public trial before the court of public opinion.

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On Tuesday, same writers, different headline ‘Drama at Supreme Court over arrest of lawyer and top judge’

The Tuesday headline full with all judges faces on the front page.

While this might look harmless to a layman’s perspective viewpoint, I find it alarming that entire bench was on the spot, it paints the picture of a corrupt Supreme Court which is not only defaming but undermining authority and legitimacy of the highest court in the land. I don’t know if the editors had that in mind or maybe they did and a narrative had to keep building up.

On the second day running, the public was being prepared for the eminent arrest of the judge and the narrative was being built to paint a totally corrupt judge even when the entire case hadn’t been tabled. It’s called building perceptions, you don’t necessarily need to tell the truth, you can sway opinions with anything that suits your agenda.

On Tuesday, DCJ Philomena Mwilu was arrested within the precinct of the court which again in my view wasn’t the best thing to do as it doesn’t only undermine the authority of the court but also sends intimidating messages to other judges who might now not want to cross paths with the executive.

Mwilu now faces numerous counts of stealing, abuse of office and failure to pay taxes. “The evidence in our possession, reveals that Lady Justice Mwilu abused her office for personal gain; accepted a gift in the form of money in circumstances which undermined public confidence in the integrity of her office (and) conducted herself in disregard of the law,” DPP Noordin Haji said in a statement.

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“In view of the above, I have concluded that the evidence is sufficient with a reasonable prospect of conviction and it is in the public interest that criminal proceedings should be preferred,” the DPP concluded.

Wednesday, the Daily Nation was once again at it shouting the fall of the DCJ.

Mwilu finally fell according to the DN

Again, this was not only done in bad faith but part of the narrative to defame the DCJ according to my thinking, look, there’s a presumption in the courts that one is assumed innocent until proven otherwise but here’s Daily Nation smartly executing a case in the courts of public opinion. To me this is character assassination on the person of Mwilu.

I find it exposing that the newspaper would overlook the presumptions of the court to prosecute and convict without facts. There are rumors that there’s a succession plan underway since the Chief Justice Maraga is three years shy of his retirement age hence the need to find a favorable replacement. As the DCJ, Mwilu is poised to take over but she is presumed to be a tough nut and system unfriendly, maybe that’s why she need to get out of the way.

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David Ndii seems to have an idea on who’s behind Daily Nation’s Headlines. This is not the first time accusations are being thrown at Daily Nation for being a mouthpiece of the state and if it can be proved then it would be unfortunate for such a big scale media house being reduced to a government mouthpiece and a propaganda channel.


Kenya Insights allows guest blogging, if you want to be published on Kenya’s most authoritative and accurate blog, have an expose, news, story angles, human interest stories, drop us an email on [email protected] or via Telegram
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