CHAPTER 19

PRESIDENTS AND PREMIERS OF AND AFRICA ASSESSED: KENYATTA 1, MOI, KIBAKI AND KENYATTA II AND BEYOND This Draft Chapter may be cited as: Ben Sihanya (forthcoming 2019) “Presidents and Premiers of Kenya and Africa Assessed: Kenyatta 1, Moi, Kibaki and Kenyatta II and Beyond,” in Ben Sihanya (2019) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa Vol. 2: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring & Innovative Lawyering, & Siaya.

19.1 Presidents and Premiers of Kenya, 1963-2019 How have the presidents performed on the basis of life, liberty, land (property) and the pursuit of prosperity or happiness? What Afro-Kenyanist approach can be used to assess and judge performance of presidents and premiers in Kenya and Africa?

19.1.1 (12 . 12 .1964 - 22 . 8 . 1978) The institution of the Presidency in Kenya was first held by President Jomo Kenyatta. At independence, executive authority was vested in the Queen of England and exercised on her behalf by the Governor-General. A Prime Minister was appointed by the Governor-General from among members of the House of Representatives. The institution of the Presidency was a creation of the first constitutional amendment (Act No. 28 of November 24, 1964). This amendment abolished the office of Prime Minister and created the office of an executive and powerful President who became the Head of State, Head of Government, and Commander-in- Chief of the Armed Forces.

19.2.2 Assumption of Presidency by Kenyatta Kenyatta was then declared President in December 1964 by constitutional or Parliamentary fiat.1 No elections were held in order to give all Kenyans an opportunity to elect a President of their choice; nor was a referendum held on this fundamental constitutional change. Cf. was the Constitution therefore valid?

From 1964 to 1969, the House of Representatives had the power to elect the President. This changed with the 10th Amendment (Act No. 45 of July 12, 1968), which provided that the President was to be elected through a popular vote.2 Cf SA Presidential election;

1 Postpone elections, citing cost, not ready, assassinate-CMG, TJ-to join 002, KPU; kill, bankrupt, state violence (ESAO), “Ethnic Cleansing and Civil Society in Kenya,..” Coast is clear, conduct elections. Cf. Kenya (2012); Nigeria (2015); South Sudan (2015)… 2 Yash Pal Ghai and JWPB McAuslan, (1970) Public Law and Political Change in Kenya, Oxford University Press; David Goldsworthy (1982) : The Man Kenya Wanted to Forget...1968: Postpone elections - Costly - Not ready - Assassinate – CMG; TJ – to join 002, KPU; kill, bankrupt. 1 recall....Mandela, Mbeki, Zuma, Ramaphosa.....

President Kenyatta died in office in August 1978. He never faced any (democratic) presidential election in 15 years – the constitutional, political party and electoral process was always organized or manipulated to make Kenyatta President. The main one was that the president of KANU would be the President of the Republic and KANU was the only party.

19.2.3 Assessing the Kenyatta Presidency 19.2.3.1 Challenges to the new Kenya Republic At independence Kenya was faced with two major divisive and at the same time unifying factors. These were (1) ideology,3 and (2) white race and ethnicity; kalaba (colour bar)

A third set of factors cut through the major two, i.e. disease (ugonjwa); poverty (umaskini); ignorance (ujinga or upumbavu); wealth accumulation and class politics. Being an ex-British colony, and a shining example of a newly independent African state, Britain and America staked a claim on Kenya in the context of Cold War politics.4

Scholars and analysts have argued that ethnicity started rearing its ugly head during Kenyatta 1’s regime.5 Charles Hornsby, a scholar and historian has specifically titled some pages of his book “The Kikuyunization of Kenya under President Kenyatta.”6 In this account, he shows how the Kenyatta Government ensured the entrenchment of Kikuyu power and the sidelining of other ethnic groups from government jobs. Githu Muigai, the A-G under Kenyatta Plus, agrees.7

- Sate violence (ESAO – ethnic cleansing) - Coast is clear, conduct elections, but not presidential. A Governor said K1 would be a leader unto darkness and death. Was he? 3 See Atieno Odhiambo (1988) “Democracy and the ideology of order in Kenya;” Anyang’ Nyong’o (1989) “State and society in Kenya: the disintegration of the nationalist coalitions and the rise of presidential authoritarianism, 1963-78,”…. 4 JK, Moi, TJ 5 Godwin R. Murunga, “The State, Its Reform and the Question of Legitimacy in Kenya, in Identity, Culture and Politics: An Afro-Asiatic Dialogue”, Vol. 5, No. 1, 2004. Also see, K. Omolo, ̳”Political Ethnicity in the Democratization Process in Kenya”, African Studies, Vol. 61, No. 2, 2002, at p. 209-221. 6 Charles Hornsby (2012) Kenya, A History Since Independence, IB Taurus, London, New York, at 254. Kenyatta 1 had appointed 11 senior parastatal heads from the Kikuyu community in the 1970s (compare this to the equally tribal Kenyatta Plus’ appointments in 2013 and 2014). Also, out of the then seven Provincial Commissioners, only three were non-Kikuyus. Compare this to the Moi (1978-2002 era); Kibaki (2002-2007 era); Kibaki -Raila (2008- 2013era) and the Uhuru-Ruto era (2013-to date). The 2010 Constitution is a template for correcting the ethnic divides exacerbated by all the past presidents who pitted big tribes against the small ones for political expediency but is it being effectively implemented? Is ethnicity worsening? Yes. Consider who is in charge of security, finance, law or legal affairs nationally and in most institutions of the central or national Government. 7 Githu Muigai (2003) “Jomo Kenyatta and the rise of the ethno-nationalist state in Kenya,” in Bruce Berman (eds) Ethnicity and Democracy in Africa Ohio University Press, 200-217. 2 Cf. any necessary compromises by the Mzee Jomo Kenyatta regime if any.

19.2.3.2 Relations between the West and Kenyatta’s Kenya Under Kenyatta 1’s regime, Kenyan relations with the UK remained close, but by the mid – 1970s the British influence was weakening and the UK’s economic decline limited their ability to give preferential treatment to Kenya. With the British military commitments near an end and the land acquisition process complete, dealings between the two countries began to approximate a normal state-state relationship. However, Britain remained Kenya’s largest aid donor throughout the 1970s.8

The biggest change in relations came in 1973 when the UK joined the European Economic Community (EEC). This required a renegotiation of all preferential trade arrangements with the UK.9

It is believed that the Kenyatta Government campaigned against British and French arms sales to South Africa. It criticized Western links to South Africa in a way that embarrassed the UK on several occasions. 10

Cf. William Attwood (1967) The Reds and the Blacks: a Personal Adventure Harper & Row.

Kenya and the US maintained friendly but low-level relations. According to Hornsby, the 1970s were a period of US disillusionment with Africa. During this time, US regional attention focused on South Africa, Nigeria and Congo. What were the constitutional, statutory and judicial perspectives on Kenyatta’s foreign policy and international relations from 1963 to 1978? 11

19.2.3.3 Parties in the constitution of the Kenyan Republic Significantly the major political parties were KANU, KADU12 and the African Peoples Party (APP). These did not have significant ideological differences. Indeed, it was largely thought that while KANU was nationalistic and pro-African majority, KADU was substantially associated with colonial (or settler) capital and politics. Some even claimed that KADU was sponsored by the colonial settlers and politicians who feared that a nationalistic and revolutionary KANU

8 Ibid, at 236. 9 Ibid.In the end, Kenya followed the “Yaoundé option” for aid and trade, and structured their relationship with the UK and the rest of the EEC along the lines developed for the French colonies. 10 Ibid,. Kenyatta, for instance, secretly agreed to participate in dialogue with South Africa as long as the South Africans publicly accepted the eventual equality of races, even without a timetable. Kenyatta was also a personal friend of Dr Hastings Banda in Malawi, whose willingness to do business with South Africa aroused international protest. 11 JB Ojwang and Luis Frnacheschi (2002) “The Constitutional Regulation of the Foreign Affairs Power: A Comparative Assessment,” Journal of African Law, Oxford, 46, 1, 43–58. 12 Kenya African National Union (KANU); Kenya African Democratic Union (KADU). 3 would nationalise colonial or settler capital 13and either expel Whites or deny them citizenship14 or other liberties.

KADU and colonial overlords hid their designs by arguing that KADU was intended to protect minority ethnic groups and races against the dictatorship of the majority i.e. the Kamba, Kikuyu, Kisii, Luo and to some extent Luhya in KANU.

Remarkably, immediately after independence in 1963, Kenyatta made statements to clarify that an African (i.e. his) Government was not a gangster Government and that it would protect private property based on the model of market enterprise and individual freedom and liberties (i.e. liberal constitutionalism).15

19.2.3.4 Land question, settler question, settlement of key axis, resource distribution…. Kenyatta goes to Nakuru (the “capital of settlerdom”) in 1963 and addresses White farmers thus, “I have come to urge you to stay and farm this land … If I have made a mistake against you, it is for you to forgive me, and if you have made a mistake against me then it is for me to forgive you….” Kenyatta was emphasizing that Kenyans suffered without bitterness;16 that although Kenyans suffered, they can forgive but not forget.17 To many, this was a betrayal of the spirit and purpose of independence - especially those who had lost their land and suffered human rights violations in the hands of whites.18

Cf: K+ and Jubilee prayer rally in Afraha after the ICC cases against its leaders were dropped.

The perspective taken by Kenyatta and his close associates in Government on individual control of property and limited redistribution of wealth caused a major rift in presidential circles and national politics. It had major impacts on the constitutional process – esp. the mode of governance and constitutional amendments (s.47….)

Land question: land use; constitutional; political and technical questions: Coastal (beaches, squatters). Maasai; Kikuyu land question; Kalenjin land question; Nairobi-hoarding, grabbing and speculation; national- fragmentation, etc…

13 Or assets... 14 Cf. KADU and KANU Constitutions and manifestos. 15 Darkness and death? According to Governor Sir Patrick Renison, K 1 had later said he’d be a leader of light and prosperity?

17 Tusahau yaliyopita, tujenge taifa; Cf Rear view mirror as presented by K+ during campaigns; as analyzed by Muriithi Mutiga. 18 Suffering servant? K1 advisor; ideology? Rhetoric? Cf Kenyatta aliteswa sana (alitesa sana?). 4 19.2.3.5 Ideology v ethnicity: intraparty politics; redistribution; social change [old v new identities]19 This led to the emergence of KANU A and B particularly after the absorption of APP and later KADU on about Nov. 10, 1964. One faction of KANU favoured Western capitalism based on private accumulation. This was the Kenyatta-Mboya-Gichuru-Njonjo axis. There were differences between Mboya’s more egalitarian capitalism, and Kenyatta’s capitalism.20 The other KANU faction clamoured for a socialist and egalitarian approach based on redistribution of wealth and expansion of the welfare system or welfare state. (cf. Party manifestos; Mboya’s Freedom and After...)

Welfare states are responsible for providing services like health services, food subsidies or stamps and education.21 Moreover, if one is unemployed but has skills then they put them on the dole so that one is exempted from paying taxes or pays very low taxes on the services. One may even be paid upkeep allowances e.g. Scandinavian countries and Britain (especially under (former) Labour Governments. Cf. USA - Due process; equal protection clauses of the Constitution (5th and 14th Amendments).

Odinga and Kaggia emerged as the leaders of the socialist faction and there were ridiculous allegations by Kenyatta, some Americans and some Britons that the Odinga group wanted to undermine and even overthrow the Government.22

In 1965, the Kenyatta group made a lukewarm ideological response to the Odinga group. TJ Mboya, , John N. Michuki, etc lead in writing Sessional Paper No. 10 of 1965 on African Socialism and its Application to Planning in Kenya.23 The government discriminated and excluded some areas on development projects. Paragraph 133 provided that;

“One of our problems is to decide how much priority we should give in investing in less developed provinces. To make the economy as a whole grow as fast as possible, development money should be invested where it will yield the largest increase in net

19 ESAO, Lonsdale, Ogot, Adams Oloo..... 20 Mboya, Freedom and After; and his assessors 21 vouchers 22 See the musings and unsubstantiated statements in a book written by the then American Ambassador to Kenya: William Attwood, The Reds and the Blacks … See also Odinga’s Not Yet Uhuru; Sihanya (2010) “Reconstructing the Kenyan Constitution and State: Lessons from German, UK, American and African constitutionalism,” Presentation at the 60 Years of German Constitutionalism – Constitutional Debate in Kenya, Organized by the German Academic Exchange Service (DAAD) Regional Office for Africa, at the University of Nairobi, Main Campus, Kenya, October 22, 2009; Ben Sihanya and Duncan Okello (2010) “The limits of power sharing as a device for managing structural conflicts,” in CODRALKA 1; Sihanya, “The quest for legality, validity and legitimacy in Kenya’s constitutional review, 1963-2007; all these are on file at Innovative Lawyering and Sihanya Mentoring. 23 See Atieno Odhiambo (1988) “Democracy and the ideology of order in Kenya,” op. cit. See the debate in the National Assembly and Senate. 5 output. This approach clearly favours the development of areas having abundant natural resources, good land and rainfall, transport and power facilities and people receptive to and active in development.”24

Scholars such as Colin Leys, Prof Atieno Odhiambo, Prof Anyang’ Nyong’o and others have argued that this policy paper had very little if anything African or socialist about it.25 It was a blue print for Western capitalism and local domination. It was largely a rhetorical response to KANU’s ideological paucity raised by the political left led by Odinga and Kaggia. It was therefore ideologically wishy washy.26

Kenyatta goes to Kandara in 1966 and addresses Kaggia thus, “we were with Paul Ngei, Kungu Karumba, Fred Kubai etc in Kapenguria (jail).27 They have large coffee farms, buses and other investments. What have you done for yourself, Bildad Kaggia?”Kenyatta appointed his nephew, Dr Njoroge Mungai as Kenya’s first Minister of Defence and later had him serve as Minister for Foreign Affairs from 1969 to 1974. (after assassination of CMG Argwings Kodhek).

Kenyatta introduces laws to restrict freedom of expression, association and assembly.cf. Kaggia v. R.; Oguda v. R.

Kenyatta’s comments on Kaggia have been interpreted by Prof Ali Mazrui,28 Prof Ngugi wa Thiong’o,29 Prof E.S. Atieno Odhiambo30 and others to mean that Kenyatta’s understanding of independence was an invitation to private and/or primitive accumulation of wealth; it was an “invitation to treat” at the coffers of the state at the expense of the mwananchi or the greater public interest.

Others have interpreted this outburst and later developments as a reminder to Kaggia of his ethnic identity and that he should not associate with Odinga, an uncircumcised kihii.31

24 Paragraph 133 of Sessional Paper No 10 of 1965 on African Socialism and its Application to Planning in Kenya. 25 See Colin Leys Underdevelopment in Kenya: the Political Economy of Neo-colonialism, 1964-1971; See also Ben Sihanya (2003) Constructing Copyright and Creativity in Kenya: Cultural Politics and the Intellectual Property of Transnational Political Economy Juridical Science Doctorate (JSD) dissertation, Stanford University, USA. 26 Cf on education and health. [Goldsworthy (Tom Mboya: The man Kenya wanted to forget,), on TJ’s role in Sessional Paper No 10……Historic Association of Kenya Papers on African Socialism; EA Journal articles on African Socialism during TJ’s lifetime and EA Journal publishing post humously (as cited in Goldsworthy 27Obuya Bagaka (2014) “Striking similarities between ’s trial at The Hague and Jomo Kenyatta’s Kapenguria case,” The Sunday Nation, Nairobi, September 28, 2014, at http://www.nation.co.ke/oped/Opinion/Uhuru-Kenyatta-Jomo-Kenyatta-The-Hague-Kapenguria/-/440808/2467776/- /9vlj79z/-/index.html (accessed 15/10/14). 28 See Mazrui’s On Violence and Thought… 29 See Nguig’s Detained: A Writer’s Prison Diary HEB/EAEP, Nairobi … 30Ibid. 31 See E.S Atieno Odhiambo, “Ethnicity, nationalism and democracy in Kenya;” E.S Atieno Odhiambo, Hegemonic enterprises and instrumentalities of survival, ethnicity and democracy in Kenya”; Winnie V. Mitullah (2002) , “Recognizing and Respecting Cultural Diversity in the Constitution”, Constitution of Kenya Review Commission (CKRC); E.S Atieno Odhiambo “Ethnic Cleansing 6 TJ Mboya and A-G Njonjo were instrumental in some of these constitutional, legislative and political and administrative manoeuvres to undermine the socialist leaning politicians. In April 1966 KANU Secretary General (TJ Mboya) and others designed a formula for locking out this group from key KANU and Government offices and functions. At the Limuru Conference they created 8 positions of KANU Vice Presidents. This effectively diluted the authority and seat of the KANU and state VP (Odinga).32

As a result, Odinga and others resigned and formed Kenya People’s Union (KPU). In this regard Odinga, Kaggia, Achieng Oneko, among others and some MPs crossed the floor. Immediately, the Kenyatta group passed a constitutional amendment (the turn coat amendment) (The Constitution of Kenya (Amendment) (No. 2) Act No 17 of 1966) to stop the defection from KANU (later s. 40) saying any person who resigns from the party that sponsored her to Parliament must seek a fresh mandate. As a result some re-defected to KANU.33 The amendment was later made retrospective when some of the defectors claimed that they were still MPs. The turncoat rule was imported from Life President Kamuzu Banda of Malawi. Cf. communiqué by Rwanda's ruling party (Rwanda Patriotic Front (RPF)) backing Kagame for a third term.

Little General Elections were held in 1966. The Standing Orders of Parliament were amended to provide that an opposition party is only recognised if it has at least 30 MPs. This was meant to deny KPU the status, powers and privileges of the official opposition party, and Odinga, the power, and privileges of the Leader of the Opposition.

19.2.3.6 Right to life in Kenyatta’s Kenya34 Partly because of tensions in the KANU party and in Kenya, Pio Gama Pinto becomes Kenya’s “Goal” first major victim of assassination in 1965. He is perceived to be an ideologically sophisticated politician and a key strategist of the political left (i.e. the Odinga-Kaggia group). Was he also used by Kenyatta to undermine Mboya in the labour movement?35

In February 1969, Foreign Minister and ex Mau Mau lawyer CMG Argwings Kodhek dies in a road accident.

32 Discrimination in education- K Plus’s ethnic platform during electioneering ad to after elections. 33 The turncoat rule had been used by Kamuzu Banda in Malawi to sustain the hegemony through the Malawi Congress Party (MCP). 34 Section 71 of the 1969 Constitution; Article 26 of the 2010 Constitution. 35 Prof Michael Chege said in 2003 that in 1965 Kenya lost its innocence. Cf Dr Willy Mutunga in 2003 addressed a seminar at Professional Centre: return of assassinations? Following the assassination of Dr Crispin Odhiambo Mbai, Dr Mutunga was reportedly skeptical. Cf 2015 debates on TJ, JM, Robert John Ouko, Mugabe Were, Saitoti, , Otieno Kajwang, Fidel Odinga, George Muchai, Jacob Juma… 7 At about 1.00pm on July 5th 1969 Mboya is assassinated after a number of attempts.36 Who killed TJ? Why? Who covered up? Why is TJ not mentioned as a hero especially on independence celebrations? Why is the mausoleum desolate? Is it a case of what Prof Ogot calls second death – being forgotten after death?

In October 1969, Kenyatta goes to Kisumu allegedly to open the new Nyanza General (Russia) Hospital. It had been completed many months earlier. Kenyatta attacks Odinga. The supporters of KPU confronted him to produce “your friend” Mboya while shouting KPU slogans.37 Kenyatta threatens Odinga with detention; abuses him; and calls Odinga’s supporters “vinyangarika.”38The security forces open fire and even shoot school children who had lined along the President’s route to welcome him and to bid him bye. KPU is banned and its leaders detained. Kenya becomes a de facto one party state as KPU is locked out of the 1969 General Elections. Liberties which are undermined through presidential power at this point include: right to life – s.71/Art.26; freedom of expression, association, assembly: ss.79, 80; Arts.33, 36; political rights (Art 38), etc.

In 1972 Ronald Ngala dies in a road accident – assassinated?39 The 1974 General Elections are largely a KANU – and Kenyatta - affair as KANU continues the “clearance” system.40

Road accidents i.e.: - Assassination formula - Reasons for each - Relate to succession - Only those outside Kiambu are dying in accidents etc…?

In 1975 JM Kariuki is assassinated. In 1975 after the death of JM Kariuki a Parliamentary Select Committee (PSC) chaired by Elijah Wasike Mwangale is formed to investigate the matter.41

John Keen told his colleagues outside Parliament that Kenyatta had just “killed a fellow” Kikuyu (JM Kariuki). Around the same time, Jomo Kenyatta fires John Keen who was an Assistant Minister alongside Masinde Muliro, Peter Kibisu (Assistant Minister for Labour) after they voted for an adoption of the J M Kariuki murder report and not for amendment to the motion tabled by Charles Njonjo.42

36 See BA Ogot (2006) My Footprints in the Sands of Time, as he problematizes the assassination of TJ. See also Cohen and Atieno Odhiambo Risks of Knowledge; Goldsworthy, Tom Mboya: The man Kenya wanted to forget.... 37 Kenyatta and Mboya had often visited Kisumu together; Uhuru Kenyatta visit to Migori. 38 E.S Atieno Odhiambo (2004) “Ethnic Cleansing and civil society in Kenya 1969–1992,” Journal of Contemporary African Studies, 29-42. 39 Road accidents i.e. Assassination formula; reasons for each; relate to succession; only those outside Kiambu are dying in accidents etc.? Later, there are gunning down, helicopter crashes, poisoning…Cf Ben Sihanya’s poem, “The Legacy of Kamaliza, or Kenyan liberation confront the Pan Thaguci controls and assassins.” 40 Charles Hornsby (2012) Kenya, A History Since Independence, IB Taurus, London, New York. 41 Why kill JM? 8 19.2.3.7 Change the Constitution? In 1968, Kenyatta has a heart attack. The Constitution is amended to exclude Tom Mboya (TJ) by virtue of age 40 (TJ43 was only 37).44 In 1976 Kihika Kimani, Njenga Karume and his collaborators in Gikuyu, Embu, Meru, Association (GEMA) form the Change the Constitution group45. The main point is that the VP ought not to succeed the President as stipulated in the Constitution. This time, the target is Vice President Moi, a Kalenjin.

Cf. Politics of 1969, 1978 and 1979 of amending the Constitution.

19.2.3.8 Moral economy of (post) independence According to Prof John Lonsdale and Prof E.S. Atieno Odhiambo, Kenyatta had helped fashion and preached Gikuyu moral economy: one should have self-mastery, independence or self determination by having property.46 A property-less person was subhuman. This was Kenyatta’s understanding of the Gikuyu doctrine of wiyathi (self-rule).47 Cf Koigi wa Wamwere on Kenyatta: it did not matter how the wealth was secured; but “if you’re caught, you’re not one of my own.” cf. right to property; equal protection; due process; etc. in the Constitution.48

Cf. the Sky Team (political army of Jubilee MPs) and their exploitation of the money kept in the confidential accounts of the Ministry of Interior and Co-ordination National Government; Ambassador Monicah Juma's rejection by Parliament as Secretary to the Cabinet; Ababu Namwamba led commission, Public Accounts Committee and its disbandment; auditing and reviewing of confidential expenditure by security organs of government e.g. military, police and spy agencies; Do we have a law that govern this?49

19.2.3.9 Transition to president Moi from Kenyatta50

42 Charles Hornsby (2012) Kenya: A History Since Independence I. B. Tauris Publishers, London. 43 35-40 44 See David Goldsworthy, ibid; Ghai and McAuslan, ibid. 45 Change to what? Cf Ochieng’ &Karimi (1980), The Kenyatta Succession, Transafrica Press, Nairobi 46 Land acquisition: -1969 v. 2010. 47 “ithaka mugu unda? na hiyathi”) 48 Throup, David & Charles Hornsby (1998) Multy-party Politics in Kenya: The Kenya &Moi States and the Triumph of the System in the 1992. 49 Edwin Mutai (2014) “Treasury seeks Bill to scrutinise secret security spending,” Business Daily, Nairobi, http://www.businessdailyafrica.com/Treasury-to-scrutinise-security-spending/-/539546/2479690/-/wfa9lpz/- /index.html (accessed 16/6/15). 50 Njonjo, Cabinet Meeting. 9 Kenyatta’s three operational bases; Gatundu, Nakuru, Mombasa. On August 22nd, 1978 Kenyatta dies “in his sleep” in Mombasa. Ngugi: a moment of reflection; Ni huzuni, ni kilio, Kenyatta aliteswa sana... (Alitesa? Kamaliza?)51

Moi acts as President from August 22nd to October 14th when he’s formally installed as (Ag?) President. Divine will that Moi succeeds Kenyatta who had also been ordained? (‘Nyayo’ who wants to oppose Moi?)52

Cf. Moi Day 10/10; then 14/10; in 2017 by Court Order (Odunga J).

19.3 Daniel Toroitich Arap Moi (22.8.1978-30.12.2002) 19.3.1 Succession to the presidency Upon the death of President Kenyatta in 1978, the then Vice President Moi was, on August 22, 1978, sworn in as (Acting) President.53 Moi should have been sworn in as Ag. President but A- G Charles Njonjo allegedly had him sworn in as President.54

Although initially dismissed by some (e.g. the Kiambu elite) as a “passing cloud,”55Moi proceeded to win the KANU national executive party elections, which were held on October 4, 1978 and he was sworn in as the (second) President of independent Kenya on October 14, 1978.56 Most ethnic groups, social classes, intellectual and other organized groups, looked forward to a new Kenya. Ethnic exclusion, magendo, Kiambu elite.57

19.3.2 Presidential elections in the Moi’s Kenya Between 1978, 1979, 1983 and 1992 (the continuation of the single-party era), President Moi did not face any serious challenge as the President of the ruling party KANU. Like Kenyatta, he manipulated the state and party Constitutions, which required that KANU President be the State President when KANU was in power. He was unchallenged for State presidency in 1978, 1979, 1983 and 1988.Moi faced his first competitive Presidential election in the 1992 multi-party General Elections, occasioned by the repeal of section 2A of the 1969Constitution.

Cf. the role of G. G. Kariuki, Nyong’o, Ole Tipis, Biwott....

51 Busy working holiday. Nairobi: -State House –Harambee Avenue Alitesa?Kamaliza?Mzee 52 “Nyayo” who wants to oppose Moi? 53 See Duncan Ndegwa, Walking in the Kenyatta’s Struggles 54 See Ndegwa, Walking in Kenyatta’s Struggles… 55 24 years? One of the politicians said in 2012-2013 that they never talked of a passing cloud. 56 Moi day was 10/10. It was not celebrated from 2003. Kenyatta Day was. It has now been replaced by a Mashujaa Day on 20/10. 57 Moi day was 10/10. Mashujaa Day is 20/10 after which used to be but is essentially double Kenyatta Day; Key freedom heroes are not celebrated. Cf. it is about the Kenyattas. 10 President Moi won the 1992 and 1997 Presidential elections with less than 50% of the popular vote, respectively. Both victories were questioned in the High Court for not being free and fair. The cases were however dismissed on technicalities. He did not contest the 2002 elections because he had served two terms.58Moi eventually handed over power to Mwai Kibaki, the winner of the 2002 Presidential contest.

Critics argue that Kenyatta, Moi and Kibaki deployed various permutations of princely Machiavellian political power play in order to maintain ethnic power structures and the status quo.59 The common denominator is the manipulation of ethnic diversity, the Constitution, the judicial process and the ethnic dimension of inequality.60

19.3.3 Life in Moi’s Kenya The right to life suffered a major blow as Moi consolidated his presidency. The challenges included assassinations or unexplained political deaths (Ouko, Muliro, Ndilinge, Muge…); extrajudicial killings by police and other security forces; prison deaths (arising from misfeasance, malfeasance or non-feasance) (Titus Adungosi, the first SONU Chair, died in 1988 in prison under unexplained circumstances after he was jailed for sedition following the 1982 coup.); poor health delivery leading to61 preventable deaths, there was a breakdown of the health of delivery system; infant mortality….

19.3.4 Liberty in Moi’s Kenya The freedom of conscience, expression, association and assembly were constrained under Moi. Conscious harassment of individuals on the basis of religion including religious leaders e.g. Rev Imunde v. AG; banning of magazines and dismantling of presses (e.g. Nairobi Law Monthly;62 Wajibu, Colour Print). Expression, assembly and association; S. 2A;63 no other party but KANU;64 all others must pay to be members of KANU). (Baba na Mama)

19.3.5 Party questions in Moi’s Kenya President Moi adopted the same strategies and particularly at moments of crises, including in the context of the one-party state (June 1982); immediately after the coup attempt (August 1,1982); fall out with Charles Njonjo (1983); assassination of Foreign Affairs Minister Robert Ouko (1990); and during the challenges of multi-partyism (in the early 1990s).

58 Section 9(2) of the Constitution; Matiba v. Moi, op. cit. 59 Cf. Niccolo Machiavelli, The Prince, ed. W. K. Marriott (1908) J. M. Dent and Sons, London; See also Stephen Ndegwa (1997) “Citizenship and ethnicity: an examination of two transition moments in Kenyan politics,”American Political Science Review, Vol. 91, No. 3 (Sep., 1997), pp. 599-616. 60Ibid; Sihanya, “Presidential Political Power Play in Kenya 1963-2007,” op. cit. 61 Breakdown of health delivery system; infant mortality 62 The Nairobi Law Monthly magazine was edited by human rights lawyer Gitobu Imanyara and was known for publishing instances and violations of human rights violations and agitating for multiparty democracy. The magazine is now published by Nairobi lawyer Ahmednassir Abdullahi.

64 Section 2A of the KANU Constitution 11 It is in this context that progressive politicians, academicians and other intellectuals launched the quest for coalition governance. Such cross-ethnic coalition became even more crucial in the context of the Moi succession. Moi was keen on being succeeded by Uhuru Kenyatta, a political neophyte and son of Kenya’s first President.65Uhuru would owe allegiance to his mentor.66 Does he still owe this allegiance in the current jubilee leadership?

It is in this context that the Rainbow group rebelling against Moi’s intrigues formed an alliance with the National Alliance Party of Kenya (NAK), itself a coalition of parties and pressure groups led by Kibaki, Wamalwa and Charity Ngilu (DP, FORD K & NAK). Rainbow soon developed a political party led by Raila Odinga, Kalonzo Musyoka, , William Ole Ntimama, Moody Awori and Joseph Kamotho, among others.

19.3.6 Integrity and anti-corruption in Moi’s Kenya The Moi Administration continued in the footsteps of Kenyatta. Moi generally “liberalized” corruption in ethnic terms. Cf. Prevention of Corruption Act; POEA; role of KACA, KACC, EACC... In 1991, President Daniel Moi established the Anti-Corruption Police Squad (specialized entity within the police department) to prosecute cases of corruption. After 3 years fire consumed the office premises, bringing to an end the work of the unit.

Was this a plan to destroy evidence? There have been similar reported fires in the recent past especially regarding crucial investigations. Undoubtedly, during Moi’s reign, corruption was systemically entrenched in the country’s bloodstream and has refused to go away ever since. This institutionalization of corruption is evident in the continuous unsuccessful purges and the dismantling of anti-corruption agencies or sacking officials of the agencies as and when they appear to be closing in on some corruption targets.67

19.3.7 Constitutional review in Moi’s Kenya The Moi Administration bowed to pressure and facilitated the Inter Parties Parliamentary Group (IPPG) caucus in 1997. This was followed by the establishment of the Constitution of Kenya Review Commission (CKRC). Moi purported to disband CKRC when he called the 2002 General Elections.68(Was this constitutional?)

19.3.8 Relations with the West in Moi’s Kenya

65 Uhuru was described by his critics as Simon Makonde: He had lost elections and had only been recently nominated an MP and appointed Minister for Local Government in quick succession. 66 1997, minimum coalitions, s. 16(2), National Assembly and Presidential Elections Act (NAPE). 67 See the case of the first KACA director Harun Mwau who was fired after recommending prosecution against graft barons. The same fate befell Justice Aron Ringera, PLO Lumumba and Mumo Matemu and his deputies. 68 constitutionality? 12 Moi’s foreign policy differed a little bit from Kenyatta 1’s. But unlike Kenyatta, Moi could travel and he reportedly did so frequently. E.g. Moi paid his first state visit to the UK and the Netherlands in June 1979, where he met the British royal family and Prime Minister Margaret Thatcher.69 In 1983, the British Queen visited Kenya, her first state visit since independence.

Kenya’s tilt to the US during the Moi era became more noticeable. Moi made state visits to the US in 1980 and 1981 where he met President Ronald Reagan, the then President of the US.70 Moi visited US also in 1990 when George W. Bush (I) was the President. In the early 1980s, US private business made several new investments in Kenya. The US was Kenya’s third-largest bilateral aid donor after the UK and West Germany.71

19.4 Emilio Stanley Mwai Kibaki (30/12/2002-09/04/2013) How did he rise to the presidency? KPIs? Performance? 19.4.1 Assumption of presidency Mwai Kibaki, the Othaya MP since 1974, was sworn in as the 3rd President of Kenya on December 30, 2002 after winning the Presidential Election by a landslide 66% on the ticket of National Rainbow Coalition (NARC).72What were the issues in the campaign? Manifesto? The NARC government campaigned on a platform of zero tolerance to corruption, provision of Free Primary Education, improvement of tourism and agriculture as growth drivers of the economy, privatisation of poorly performing parastatals, and investment in infrastructure among others.

What were the findings of the Independent Review Committee (IREC) and the Commission of Inquiry on Post Election Violence (CIPEV) which were formed to investigate the problematic issues that led to the post-election violence. It is important to note that the two commissions were non-judicial bodies.

The Independent Review Commission was led by South African retired judge Johann Kriegler and was charged with reviewing the 2007 elections and the resultant violence with a view to recommending solutions. Some of the major findings of the Kriegler (IREC) Commission were:- a weak and inconsistent constitutional and legal framework relating to elections that was in urgent need for revision, as well as the need for consolidation of electoral laws, a lack of independence of the electoral body (ECK) as well as functionality and capacity that was as a

69 Charles Hornsby (2012) Kenya, A History Since Independence, IB Taurus, London, New York, at 371. 70 Hornsby, (2012) Kenya, A History Since Independence, at 371. 71 Ibid. It is during Moi’s era that the relations between Kenya and China also improved, After Moi’s visit to Beijing in 1980 and 1983, China started seeing Kenya as a market and potential ally. It donated education and technical assistance under a 1980 cultural cooperation treaty, and helped build a sports centre in Nairobi (the Moi International Sports Centre, now Safaricom Stadium). Cf Japan; safari ya Japani ilifanikiwa...song used and reiterated in the context of 1982 coup attempt. 72 Economy; foreign policy. Who were in it? 66% was the number of votes for all.-Kibaki owed RAO+KM+MM- 2013 last campaign at Nyayo... Uthamaki revisionists argued Kibaki would have won anyway.... 13 result of weak organizational structure and composition, that due to the foregoing the ECK had lost the much needed institutional legitimacy and credibility among the public, there were serious defects with the voter register which impaired the integrity of the overall elections including containing 1.2 million dead people and excluding nearly a third of otherwise eligible voters, the elections were marred by electoral fraud including voter buying, bribery and ballot stuffing to an extent that the results were irredeemably polluted, among others.

Without doubt, this was a damning indictment of the entire electoral process which was described as a travesty and which once again, put democracy on trial.

On the other hand, the Commission of Inquiry on Post-Election Violence (CIPEV) was led by Court of Appeal Judge Phillip Waki, also known as the Waki Commission. The taskforce was charged with investigating the facts surrounding the 2007/2008 post-election violence and the conduct of state security agencies at the time, in seeking to contain the same. The major findings of the Waki report were that:- the increased concentration of power in the Presidency was a contributing factor to the violence due to the belief that several benefits accrue to persons of an ethnic group whose member is the President, inequalities and other forms of marginalization were also partly to blame for the violence especially among the urban poor such as in the slums in Nairobi e.g Kibera, there was both spontaneous violence as well as planned and sponsored violence by politicians and business leaders, the state security agencies were ill-prepared to contain the violence due to the failure to receive and act on the intelligence from the National Intelligence Service that had warned on possible violence, the violence was not mere assaults by a citizen against another but was systematic in the sense that it involved attacks by members of one ethnic group against another (attack by guilt association), and that individual members of the security agencies were responsible for human rights violations, among others.

Cf. Compare the findings of the two commissions.

19.4.2 Rights and liberties Pressure from civil society and parties witnessed improvement in fundamental rights from the Moi years in general terms. Kibaki tried to fight back through teargasing pro-Constitution protestors (including Uhuru); protestors against electoral fraud.73

There have been assassinations and unexplained political deaths (Mbai, Oscar King’ara, JP Oulu etc...) and extrajudicial deaths (especially of Mungiki adherents).74

73 Standard newspaper/KTN raid – “If you rattle a snake, be prepared to be bitten by it”- Michuki; Lucy Kibaki- NTV raid. 74 Cf. ICC decision 2012; CIPEV; Prof Philip Alston’s report on extra judicial killings…, especially after 2007 elections. 14 Economic growth generally improved. But challenges regarding, fundamental rights, distribution of state resources and infrastructure e.t.c. persisted.

Critics argue that the Kibaki Government “privatized” corruption. The (NCIC) and others have published reports regarding how the Kibaki Administration had distributed the public service jobs and state resources. Patronage, as was the case in Kenyatta’s and Moi’s regimes, emerged in Kibaki’s administration where in almost every key ministry there was ethnic bias that was no longer limited to one group. There has also been allegations of exclusion and grand corruption; Anglo Leasing in 2003; Free Primary Education (FPE) fund, Triton (oil) and Maize in 2009/2010; NHIF and NSSF scandals cramping health reforms.75

19.4.3 National integration The similarly and popular perspective is that Kenya is more ethnically divided than when Kibaki became President. At the time, Kenyans were reportedly the most optimistic in the World in terms of cohesion, integration and socio-economic progress. The ethnic question is related to issues of misfeasance, e.g. appointments, in the finance and security dockets...; malfeasance, misfeasance and nonfeasance.

19.4.4 Presidential, NA, civic and party elections Kibaki vied for re-election in December 27, 2007 and was declared the winner in elections that were described as fraudulent and irregular.76 Consequently, the main political protagonists – Orange Democratic Movement (ODM) and Party of National Unity (PNU) – agreed to form a Grand Coalition Government77 with Mwai Kibaki remaining as President and Raila Odinga as Prime Minister.78 The President’s party had internal wrangles and hardly had a recognizable party structure.79

19.4.5 Constitutional review The Kibaki Administration presided over part of the CKRC or Bomas review process. This was scuttled by the Njoya80and related court decisions, among others which had support from the President’s wing of the coalition. The unilateral 2005 referendum draft was defeated. A rapprochement in the Grand Coalition Government led to the adoption of the 2010 Constitution in August 2010.

19.4.6 Relations with the West

75 NHIF, NSSF – focus on public health reforms 76 Constitutional; legality. 77 Constitutional amendment; law 78 Grand coalition is a doctrine in German constitutional process. 79 Models for Africa? Zimbabwe? Ivory Coast? Died in 2012? Before 2013? 80 Njoya& 6 Others v. Attorney General & 3 Others [2004] 1 KLR. 15 Kibaki tilted Kenya’s diplomatic balance of power in favour of the East (China) and at the expense of the West. During his tenure, President Kibaki did not visit Germany, but the Germans came to Kenya. Similarly, he never went to France. President Kibaki visited Washington once, but President George W. Bush and Barrack Obama never visited Kenya.81 Kibaki’s look-East policy saw Kenya sign contractual agreements with Chinese Wu Yi firm that constructed roads around Nairobi.82

19.4.7 Administration and management style Kibaki replaced numerous Moi era bureaucrats and technocrats, some on the basis of ethnicity or perceived lack of loyalty.83

He appointed members of opposition to Government and fired the entire cabinet after the referendum draft was defeated in November 2005. LDP members were not reappointed. Constitutionality? Effects of breach of the Kibaki-Raila MoU? Cf. Banda’s Malawi which is one of the few countries in which the President ruled after dismissing an entire cabinet.84 Also consider President Muhammadu Buhari who ruled for three months without a cabinet.85

During 2003-2007, critics like Uhuru Kenyatta argued that Kibaki’s approach (especially before coalition) was not only an intriguingly hands-off executive but also intransigent and recalcitrant behind the scenes. Uhuru described him as “Hands off, ears off, everything off!” Kibaki deployed tactics akin to Moi’s and Kenyatta’s in presidential politics in terms of ambivalence or informal power network (e.g. on nomination to constitutional and statutory offices; on election date.86

19.4.8 Legacy of Mwai Kibaki Kibaki’s legacy consists of the foregoing.87 The main question after Kibaki’s rule was as to

81 See Kwendo Opanga (2013) “Entire world, led by West, is looking East,” Daily Nation, November 30, 2014 at http://www.nation.co.ke/oped/Opinion/Entire-world-led-by-West-is-looking-East/-/440808/2093842/-/109yxy9/- /index.html (accessed June 14, 2014). 82 Cf K+: Chinese PM, Russia…ICC inspired foreign policy? Cause of Chinese “pragmatic” foreign policy and support on ICC in United Nations Security Council; Africa Union attack on ICC etc. 83 Also to JK & DTM 84 -returned only President, keep A-G, security of tenure? 85 BBC News (2015) “Letter from Africa: Does Nigeria run better without a cabinet?” London, August 29, 2016 at https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&cad=rja&uact=8&ved=0ahUKEwi0g7T n8r3NAhXHvxQKHYn_CvEQFgg9MAQ&url=http%3A%2F%2Fwww.bbc.com%2Fnews%2Fworld-africa- 34063362&usg=AFQjCNGXNiZmlOg-BgiZacEwreU2XZPeOg&sig2=wpu1W2MLABRlVVWQfRbdyw .(accessed 23/6/16) 86 Questions and cases on the 2013 election date; see Kethi Kilonzo (2014) “What’s the exact date of next General Elections?” The Standard, May 4, 2014 at http://www.standardmedia.co.ke/thecounties/article/2000110887/what-s- the-exact-date-of-next-general-election (accessed June 18, 2014). 87 How was his fidelity to the Constitution and the Law? (AG, Court orders, appointment of County Commissioners). 16 whether he would preside over free, fair and timely elections; and whether he would hand over power peacefully.88

19.5 Uhuru Muigai Kenyatta (9/4/2013-to date) What influenced Kenyatta Kamwana’s rise to the presidency? Dynasty? KPIs? Performance? 19.5.1 Assumption of presidency Uhuru Kenyatta was sworn in as the fourth president on April 9, 2013 after the Supreme Court validated his election preceding the highly disputed and contested electoral and judicial process.89

19.5.2 Rights and liberties Kenyatta Plus’s two years in office have been marked by a string of human rights infringements and rampant impunity. This has been witnessed through the adoption of restrictive legislation aimed at further regulating the NGO or media sectors (deregistration of Haki Africa and MUHURI).90Cf. the Information and Communication Act (2014); Security Laws (Amendment) Act 2014. The most recent being the revocation of the NGO’s licenses and the frisking of their various and individual accounts without following the due process. Posing insecurity as the sole reason to override the rule of law.91

Analysts have opined that the Act has allowed state control of news and information during emergencies and it has also given the Government the power to perform functions currently executed by the country’s Media Council92; Section 107 of the Security Laws (Amendment) Act, 2014 proposes amendments to the Public Benefits Organizations Act; do public benefit organizations have anything to do with security? Cf killing of Muslim clerics Aboud Rogo Mohammed, Sheikh Abubakar Shariff Ahmed (Makaburi), Sheikh Mohammed Idris, killings in Narok County for picketing etc. And also Christian prelates.

88-transparent? Verifiable? Art 81, 86, Elections Act, IEBC Act. -Art 81, 86, Elections Act, IEBC Act; cf. the March 4, 2013 General Elections and the subsequent petitions discrediting IEBC. Peace crusade...injection including through media, peace committee, songs like anayependa Kenya; We are one messages? 89 See Raila Odinga& 5 Others v. IEBC & 3 Others (2013) eKLR. See Ben Sihanya (2013) “Constitutionalism and the rule of law in Kenya’s electoral process,”, Handbook on Election Disputes in Kenya under the auspices of the Judiciary Working Committee on Elections preparation and the Law Society of Kenya, Nairobi; constitutionalism, human rights & role of law and electoral justice in Kenya; Ben Sihanya (2013) “Technology in Kenya’s Supreme Court presidential Petition in Raila Odinga: Technophobia, Dynamic Digital Tyranny (DDT) and the Future of presidential electoral justice” (2013) a presentation at the Symposium on the Supreme Court decision in Raila Odinga v. Independent Electoral and Boundaries Commission and Others on November 19, 2013 at the University of Nairobi. 90 Cf security swoops in and around Nairobi and along the Muslim-majority coastal region. See AFP (2014) “Kenya on the spot over human rights record,” Daily Nation, April 23, 2014 at http://www.nation.co.ke/news/Government- human-rights-record-Uhuru-Kenyatta-William-Ruto/-/1056/2290164/-/ftp3a7/-/index.html (accessed 12/6/2014). 91 The frisking of Muhuri bank accounts; they are accused of being al shabaab sympathisers. 92 Ben Sihanya (2014) “Media freedom anchored in law, but…” The Media Observer Magazine, January–March 2014, 8- 10. 17 There has been ethnic profiling of Kenyan and Somali Somalis especially in Eastleigh and at the Coca Cola (Kasarani) Sports Centre. K+ has increasingly sought to stop freedom of expression, political rallies….He calls speeches hate speech; to spreading tribal animosity even when the speakers are merely observing Government failures and inequity including ethnic appointments, promotions, dismissions, domination or hegemony in the economy, security; rampant corruption (list of shame); etc.

The security Laws (Amendment) Act, 2014 introduced fundamental amendments to the Penal Code (Cap 63), Criminal Procedure Code (Cap 75), Evidence Act (Cap 80), Prevention of Terrorism Act, No. 30 of 2012and National Services Act, 2011 among others. The issues purportedly targeted by the Amendment Act are: radicalization, Publication of offending material, broadcasting, communication interception by NIS, publication of gory materials.93Cf. Do these provisions amount to infringement of individual rights and liberties? See Coalition for Reform and Democracy (CORD) & 2 Others v. Republic of Kenya & 10 Others [2015] eKLR.

What was the motivation of such laws? It was argued that they were meant to counter the emerging security threats. The High Court in striking down the relevant provisions for unconstitutionality walked the middle line by balancing between the protection of individual liberties and enhancement of neutralization of security threats.

K+ agreed to Raila and CORD’s appeal to have national dialogue then he said no and sought to stop debate rallies.94

Kenyatta + has also strengthened ties with the East. He has made diplomatic trips to Russia and China (who have voiced no concerns whatsoever about the repercussions of the ICC case against Kenyatta and his Deputy William Ruto. To strengthen this, Chinese Prime Minister Li Keqiang visited Kenya on May 9, 2014, a mission that led to the signing of multi-billion shilling “deals.” This move has raised varied interest, concerns and perspectives from all sides of the Kenyan political divide. Critics have held that the sudden shift from the West to the East is likely to have detrimental social, economic, political and technological consequences on Kenya.95

Did Uhuru realize the importance of the Western countries when it was too late? The Government hired US firms (Podesta Group) to influence its foreign policy. Kenya’s Ambassador to Washington Robinson Njeru Githae said that the move would help persuade the US to rescind travel advisories.96 It was about PR. Not substantive justice…

93 Justice George Odunga suspends 8 contentious clauses in Security Law Amendment Act. 94 See Thomas Mukaya (2014) “Uhuru blames massacre on tribalism, hate politics,” Daily Nation, 18/6/2014 at 1. 95 See Ben Sihanya (2014) “Prof Ben Sihanya on the Kenya-China Multi-Billion deal,” at http://www.innovativelawyering.com/blogs/88-prof-ben-sihanya-on-the-kenya-china-multi-billion-deal (accessed 12/6/2014). Also quoted in East African Joint Report (2014) “Uhuru globetrots in bid to cement Kenya’s diplomatic, trade standing,”East African, May 17-23 at page 12-13 and http://www.theeastafrican.co.ke/news/Uhuru-globetrots/- /2558/2320196/-/10mo4mm/-/index.html (accessed 14/6/2014). 18 What can an ordinary mwananchi read from the “partnership” between the country’s Presidential Delivery Unit (PDU) and former British Prime Minister Tony Blair?

19.5.3 Administration and management style Kenyatta’s administration and management style is viewed by most people as a continuation of the Kenyatta 1...lieutenants; ridges; applying Moi-Kibaki styles. This is despite the fact that the Jubilee Government took over Government under the 2010 constitutional regime where major constitutionally based structures were expected to be implemented.97Ethnicity is deeply rooted.98 Crime, insecurity and terror have risen. There is a general economic strife occasioned by the dysfunctional government and the increasing insecurity and anti-West or pro-East approach taken by K+’s Jubilee Government as well as poor prioritisation of Government policies.99 The Jubilee government has been marred by high level graft and plundering of public funds, cf. NYS scandal, Eurobond scandal, Youth fund, Anglo-leasing ghosts, SGR, Laptop unresolved IEBC and Chicken gate scandal.

It has also been characterised by high handedness, exclusion and little room for dissidence as demonstrated by the consistent dismissal of calls for a national dialogue to discuss matters of national importance. There has been a constant chorus of ‘we have the numbers’ referring to the tyranny of numbers of Jubilee MPs in Parliament and no accommodation of the concerns of the opposition. Arguably, a regime that is impervious to criticism or which refuses to take constructive criticism in a positive manner conduces to a dilution of democracy and accountability. Cf. the debate over the sugar importation deal with Uganda and the double-speak from the government over whether the deal was signed or not.100

19.5.4 Legacy questions for Kenyatta - Constitutionality; legality; rule of law

96 Kevin J. Kelley (2015) “Kenya hires US firm to influence policy,” Saturday Nation, Nairobi, February 14, 2015, at http://www.nation.co.ke/news/politics/Podesta-Group-Washington-Lobbying-Firm/-/1064/2624332/-/fvykfmz/- /index.html (accessed 17/02/15).

97 Implementation of devolution, creation of new offices, enactment of new laws pursuant to the 2010 Constitution etc. are among the expected reforms or transformations that the Jubilee Government owe Kenyans. 98 Just like the Moi and Kibaki regimes, the ethnic question is still related to issues of misfeasance, malfeasance, and nonfeasance. Cf the appointments into parastatals, the Cabinet Secretaries, etc. 99 The tourism sector has faced a huge blow following the UK and the US advice to their citizens on the Kenyan security status. See Muthoki Mumo (2014) “Terror attacks erode Kenya’s credit score,” Daily Nation, June 3, 2014 at http://www.nation.co.ke/business/Terror-attacks-erode-Kenya-s-credit-score-/-/996/2336178/-/acb1mv/- /index.html (accessed 13/6/2014). 100 Whatever the merit of the contentions is subject to debate however, given that Kenya is a member of COMESA and the EAC whose treaties provide for elimination of non-tariff barriers to allow free intra-regional trade. 19 - institutions and personal role or patrimonial role - Kikuyu tribalism - Electoral fraud v. reforms - State violence, impunity, - debt, economic decline - Corruption, looting - rhetoric and imports of the “big 4”: universal health care (UHC), food security, manufacturing, and industrialization, affordable housing (High Court Judgment: no taxation to fund housing – affects fair remuneration adversely - succession (2022?) anti- Ruto, anti Luo, anti Kenyan rhetoric; are Kikuyu’s and central marginalised? A diversionary strategy to forget the foregoing and other issues of unconstitutional rule

19.6 Summary of Findings, Conclusions and Recommendations on Afro-Kenyan Presidency and Premiership How have Kenyan and African presidents and premiers performed? What constitutional, legislative and administrative and political reforms are necessary to secure constitutional democracy and administrative justice through presidency and premiership in Kenya and Africa?

...the discourse continues in class, articles, books, online, in the blogosphere, social media, and appropriate fora… © Prof Ben Sihanya, JSD (Stanford), Revised 27/2/2013; 26/9/2013; 14/6/2014; 14/10/14; 16/02/15; 16/06/15; 31/08/2015; 10/2/2016; 29/6/2016; 14/4/17; 10/4/2018; 24/1/2019; 2/5; 6/9; 12/9/2019 email: [email protected]; [email protected] (use both) url: www.innovativelawyering.com

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