Police lob teargas at protesters outside IEBC offices in Nairobi. PHOTO | EVANS HABIL | NATION MEDIA GROUP
When Kenyans strongly endorsed the new Constitution in August
2010, they thought they had finally done away with the excesses that had
been the hallmark of the Executive since independence.
With
the Constitution’s robust checks and balances, Kenyans thought scenes
of police unleashing violence on university students or academics and
political dissenters being restricted from travelling abroad were behind them.
They
thought there would be no more meddling with independent state
institutions, such as the judiciary, by State House, a practice which
was routine during the Kanu regimes of President Jomo Kenyatta and his
successor Daniel arap Moi.
However,
this week, Kenyans witnessed a return of these old practices in what is
being termed a gradual but accelerated erosion of the democratic gains
made over the decades through sweat and blood.
“We
are already there, in the dark ages once again,” said lawyer Gitobu
Imanyara who supported President Uhuru Kenyatta during the August 8
polls but who feels that he is taking the country in the wrong
direction.
NEW CONSTITUTION
“The
current leadership opposed the new constitution in the first place.
They felt their predicaments at the ICC (International Criminal Court)
were brought about by the new laws and they set out to dismantle them,”
said Mr Imanyara.
President
Mwai Kibaki, who promulgated the new constitution, had less than two
years to implement it, and the promise of the new laws was supposed to
come to fruition under President Uhuru Kenyatta who came to power in
2013.
However, under his leadership, there have been many attempts to change laws, some successful; some not.
In
2015, Parliament amended the Judicial Service Act which required the
Judicial Service Commission (JSC) to forward only one name to the
President for appointment as Chief Justice.
The
plot to have JSC submit three names to the President for consideration,
thus giving the Head of State more leeway in appointing a CJ seen to be
friendlier to the regime, was only defeated in the courts.
Early
last year, President Kenyatta acquired powers to hire and fire top
police chiefs through a Miscellaneous Amendment that removed the role of
Parliament and reduced that of the National Police Service Commission
in vetting and hiring them.
Furthermore, attempts have been made by the party to whittle down the powers of the Auditor- General Edward Ouko whom the Government accuses of working for the Opposition.
JUBILEE PRIORITIES
In
fact, last month the Leader of Majority in Parliament, Garissa Town MP
Aden Duale, said Mr Ouko’s removal alongside that of National Land
Commission chairman Muhamad Swazuri, are Jubilee’s priorities in their
second term.
There are two key
areas that define the new Constitution — the dispersal of executive
powers through devolution and the creation of new or strengthening of
independent institutions to check on the Executive.
Whereas
the promise of the new constitution has been realised in certain areas,
such as devolution, the country has witnessed an increased effort by
the State to curtail the work of, or entirely do away with, some of the
independent offices.
Following
the annulment of the August 8, 2017 presidential poll, Jubilee Party has
been on the warpath with the Judiciary, especially the Supreme Court,
which it accuses of having “stolen” their victory.
In
an uncharacteristically coarse language, President Kenyatta and his
Deputy William Ruto promised to deal with the “wakora” (fraudsters) —
the four Supreme Court judges who voted in favour of annulling their
victory.
JUBILEE ONSLAUGHT
The culminations of Jubilee’s sustained onslaught on the court is a Bill that was tabled in Parliament this week which seeks to clip the powers of the Judiciary and make it almost impossible for the Supreme Court to overturn future election results.
While
President Kenyatta has defended the Bill saying it was necessary in
order to prevent the court from reaching a similar decision on flimsy
grounds, critics see a sinister ploy to undermine the institution.
The
National Super Alliance (Nasa) presidential candidate, Raila Odinga,
has termed the proposed amendments an act of “extreme provocation” and
an “attempt to change goalposts” ahead of the repeat election on October
26.
However, Senate Deputy
Speaker and Tharaka Nithi County Senator Kithure Kindiki said the
amendments are necessary to close gaps identified by the Supreme Court.
“It
is about curing illegalities and voiding a case where individuals
sabotage an election. The question of undoing gains does not arise, it
is misleading,” he said.
DESIRED AMENDMENTS
Jubilee
managed to push through their desired amendments through their
numerical strength in Parliament. They changed Parliamentary Standing
Orders that require a Bill to be published within 14 days after tabling,
to only one.
Outspoken
Elgeyo Marakwet County Senator Kipchumba Murkomen said fears that the
old habits and practices of Kanu are coming under President Kenyatta’s
rule are unfounded.
“The very
people who brag that they fought for our constitution are now its
greatest danger,” said Mr Murkomen, who is also the Senate Majority
Leader.
Criticised
at first as doomed to fail, the dissolution of small parties to form
Jubilee Party has, in hindsight, proved a masterstroke. The party now
has an overwhelming majority in the Senate and the National Assembly
which allows it to pass laws as they wish without the need for
bipartisan considerations.
This consolidation of power by the ruling party has blurred the line between the ruling party and the State.
Still
seething from his annulled victory, President Kenyatta told a meeting
of Jubilee supporters from Ukambani who paid him a courtesy call at
State House on September 11, that the party would use its Parliamentary
strength to impeach Mr Odinga if he wins the repeat poll.
TWO-THIRDS MAJORITY
“In
the National Assembly, with more than 200 members we are 13 members shy
of a two-thirds majority, meaning we can change the Constitution. Even
if he is elected we have the opportunity in Parliament within two [to]
three months to impeach him,” he said.
Interestingly
in mid-October, last year, top Jubilee officials drawn from the 47
counties visited the Communist Party of China on a month-long training
on how to run and manage a party “for 100 years without collapsing.”
One
cannot miss the subtle implications of this trip. For nearly a century
now, the Communist Party has controlled every facet of life in China. To
be expelled from the party means an end to one’s political or even
professional career.
During
the eras of President Jomo Kenyatta and Daniel arap Moi, State House
nearly became party headquarters complete with parliamentary group
meetings and other party caucuses, chanting of party slogans and wearing
of party colours.
President
Kibaki embraced it half-heartedly, but the practice has now returned in
all its former glory under President Kenyatta who has been hosting huge
delegations.
Prof Peter Ndege,
who teaches history at Moi University, says: “Presidential absolutism is
the cancer in our body politic and it has the tendency to reproduce
itself like biological organisms.”
He
says the founding President and his successor, Moi, fortified the
presidency, with the latter going further to co-opt Kanu into the state
craft and at some point the party was really the government.
POLITICAL ARISTOCRACY
Further
attempts at democratisation since then have fallen prey to a class of
political aristocracy which came up with ethnic parties, he said.
A
group of Jubilee MPs and party officials have indeed encouraged
President Kenyatta to be a “benevolent dictator”, just like Rwanda’s
Paul Kagame. Kiharu MP Ndindi Nyoro and Jubilee Party vice-chairman
David Murathe have openly called on the President to adopt this posture.
However,
former Subukia MP Koigi wa Wamwere, who was detained and finally exiled
for a long period for his fight against the one-party rule of President
Kenyatta senior and his successor President Moi, condemned the proposal
by the two Jubilee leaders.
“The
reason Kenyans fought against colonialists was to get independence and
the reason we fought for the Second Liberation was to have democracy,”
he said. “The way we cannot afford to lose our independence is the same
way we should not agree to lose our democratic gains,” he said.
Ironically,
Mr Nyoro represents a constituency that was once represented by Second
Liberation icon Kenneth Matiba whose valiant fight for multipartyism in
1991 earned him a period in detention during which he developed health
complications from which he has never recovered.
The arrest of Embakasi East MP Babu Owino (Nasa) twice this week also points to intimidation by the State of opposition figures.
SUBVERSION
Mr
Owino was first arrested on Monday and charged on Tuesday with
subversion after uttering words seemed to demean the President and his
mother during a political rally in Nairobi last week.
Although
the court released him on bail on Wednesday in connection with the
first charge, police officers pounced on him outside the courts, held
him overnight and charged him the next day with assaulting a man during
campaigns for the August polls.
“Arbitrary
arrests have become the order of the day with right to fair hearing
disregarded,” said Siaya County Senator James Orengo, who was also one
of Mr Owino’s lawyers.
Mr Owino’s arrest sparked pockets of riots by students of the University of Nairobi
where Mr Owino was a long-serving chairman of the students’ union. The
protests attracted a harsh crackdown by the police evidenced by videos
that were secretly taped of police officers clobbering students in their
lecture halls.
DEMOCRATIC STRUGGLE
Historically,
university students have been part and parcel of Kenya’s democratic
struggle and Wednesday’s police assault on UoN students brought back
memories of Moi’s harsh crackdown on radical university students.
Efforts to reach the Inspector-General for a comment on what action he
has taken against the officers were fruitless as he did not return our
calls.
Dr Wandia Njoya, a
Daystar University lecturer, attributed the return of autocratic
tendencies to what she called low immunity occasioned by a distressed
economy and a bitterly contested election.
“We
have not completely recovered from our pre-2010 condition,” she said,
alluding to the period before the passing of the new laws. “The remnant
germs of oppression are now thriving because of our low immunity,” she
said.
On Thursday, Nasa deputy
presidential candidate Kalonzo Musyoka and Bungoma County Senator Moses
Wetang’ula claimed that attempts had been made to bar them from
travelling to Uganda for a graduation ceremony.
Two
weeks ago, State House banned all international travel by civil
servants ostensibly to reduce the wage bill, but the move has been
condemned as retrogressive as it also affects academics and researchers
travelling for self-sponsored seminars or teaching assignments abroad.
CIVIL SOCIETY
Alongside
the judiciary, the civil society has come in the crosshairs of Jubilee
Party which accuses non-governmental organisations of working together
to mount what they have termed a judicial coup.
On Saturday, the government cut ties with an international NGO it accuses of having undue influence on the Judiciary.
In
a letter to International Development Law Organisation (IDLO)
Director-General Irene Khan, Foreign Affairs Cabinet Secretary Amina
Mohamed said the agreement between Kenya and the organisation was being
suspended.
“The Government of
the Republic of Kenya and International Development Law Organisation
(IDLO) negotiated and signed a Host Country Agreement on 31st December
2016 to establish a branch IDLO Office in Kenya. This is to convey to
you the decision of the Government to suspend the Host Country Agreement
with immediate effect until further notice,” read the letter dated 13th
September 2017.
The letter was
copied to Attorney-General Professor Githu Muigai and Director of
Immigration Maj-Gen (rtd) Dr Gordon O. Kihalang’wa.
In the same breath, the government is now lobbying 14 other counties that have ties with IDLO to terminate them.
On Wednesday, Ms Mohamed was in Egypt where she informed Egyptian authorities on the workings of IDLO.
CANCELLED LICENCES
Soon
after the election was annulled, the Non-Governmental Organisations
(NGOs) Coordination Board cancelled the licences of three NGOs which it
claimed were in the payroll of “foreign masters” to help the judiciary
mount the coup.
The board
cancelled the licences of the Kenya Human Rights Commission whose
chairman is US-based Prof Makau Mutua, and the African Centre for Open
Governance headed by Gladwell Otieno, both critics of President
Kenyatta.
It is hard to believe
Mr Mahamed Fazul, the board’s chairperson, acted unilaterally given the
fact his organisation falls under the ministry of Interior and
Coordination of National Government, which falls in the Office of the
President.
Though
the Constitution explicitly forbids civil servants from engaging in
overt partisan political activities, the government welcomed the
participation of several senior state officers in raising money for
President Kenyatta.
Mr John
Njiraini, the Commissioner-General of the Kenya Revenue Authority (KRA),
and Mr Joseph Njoroge, the Principal Secretary in the ministry of
Energy, are members of Friends of Jubilee, a lobby that supports
President Kenyatta’s re-election.
The duo said they were members of the group in their personal, not professional, capacities and hence owe no one answers.
During
the regimes of President Moi and President Kibaki, civil servants
heading key government institutions were accused of milking them dry to
fund the presidential campaigns.
Jubilee’s
current manoeuvres against the constitution call to mind the moves made
by Jomo Kenyatta soon after independence that culminated in the
creation of an imperial presidency.
KADU DISSOLUTION
The
first was the dissolution of the opposition Kenya African Democratic
Union (Kadu) and its merger with the ruling Kenya African National Union
(Kanu), thus creating a monolithic party.
This
was followed by the abolition of the Senate in 1966, which Kadu had
agitated for during negotiations for independence as a way of protecting
the interests of minority communities.
In October 1969, Kenya became a de facto
one party state following the banning of Kenya People’s Union, the
party that Jaramogi Oginga Odinga formed after being fired as
vice-president by President Kenyatta in 1966.
All
these moves, coupled with the use of the security apparatus, were
intended to give President Kenyatta an upper hand in his fight against
his friend-cum-enemy, Jaramogi.
Following the 1982
coup, President Moi further consolidated his power by abolishing
guarantee of tenure for top constitutional office holders, among them
the Attorney- General and the High Court judges.
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