Will CJ Koome Obey Pharaoh or Will She Walk the Path To Free Wanjiku?

By Francis Omondi

Lady Justice Martha Koome’s appointment as our Chief Justice is causing me angst. It gives me hope yet wrenches something in my gut. Her reputation as a defender of human rights is unquestioned. Yet a confession during her interview by the Judicial Service Commission showed a bias towards government. In Requiem for a nun, William Faulkner warns, “The past is never dead. It’s not even past”.

There is Koome’s activist past, her legendary past as the chairperson of the Federation of Women Lawyers (FIDA). There is the Koome who, from 2001, led civil rights organisations in securing women’s participation in the constitutional review. She frightened the Moi era regime which deemed her ideas dangerous. Koome pushed for children and women’s rights, sought the release of people locked up on trumped-up charges, those whose rights the regime had violated. That they did not lock her up as well is inexplicable. That possibility frightened her then. Not anymore.

Justice Koome hasn’t fought the government in a while. No sooner had she become a judge than she jettisoned activism. As she told the JSC panel, her work at FIDA was situational. As a judge, she said, “I have changed completely. . . . I am government, as the Chief Justice of the Republic of Kenya . . . I head the other part of government.” This is her immediate past. And it makes many anxious. Writing on race equality in the America of the 1940s, Faulkner’s message was that some day, the people would rise above these divisions and recognise the ties that bind them. They would recognise the fundamental lie of racism. But the protagonist, with his very Southern attitudes and bigotries, fails that test, and hence the past is never dead. For Justice Koome, which of these pasts is past?

Our main worry is something that her 18 years as a judge have revealed. Petitioning the JSC to reject Koome’s nomination, the President of the Law Society of Kenya Nelson Havi argued that her appointment would weaken the independence of the judiciary. Havi cited a questionable Saturday night sitting of the Court of Appeal during which Hon. Justice (rtd.) E.M. Githinji, Hon. Justice Fatuma Sichale and Hon. Justice M.K. Koome delivered a judgment ex parte (in the interests of one side only), a final order reversing a High Court ruling in the case of the Republic v IEBC Khelef Khalifa and another (2017) that had been delivered that very morning.

If Justice Koome is to deliver justice, she will have to find her true north again, her human rights past. Upholding justice must not be situational, Madam Chief Justice. Justice is about equal rights, and access to justice for those denied it. Delivery of justice must start within the judiciary.

While interviewing Justice Koome, Commissioner Everlyn Olwande spoke for the judges and magistrates when she expressed her fears using piercing allegory: Is the judiciary fast hurtling towards another purge? There was the radical surgery under Justice Aaron Ringera, and the judicial vetting that saw a host of judges evicted. The signal has always been to claim corruption within the judiciary.

In 2019, the state moved its war on graft to the judiciary. The Chief Public Prosecutor, Noordin Mohamed Haji, brought a charge against the Deputy Chief Justice Philomena Mwilu, that she had “abused her office for personal gain, undermining public integrity in the judiciary”. Haji claimed he had instituted criminal proceedings against her in the public interest as he had gathered enough evidence for “a reasonable prospect of conviction”.

But observers saw through the scheme. If the case had not been brought in order to force the JSC to eject the DCJ from office, then it was in fulfilment of the “we shall revisit” promise made by the president to the judiciary. This, in my view, was the veiled fear in Commissioner Olwande’s questions. It would be tragic if the Chief Justice were to cede her power to the executive.

The only hope the judiciary can hang on to is Justice Koome’s statement that, “An institution like the Judiciary should be self-cleansing . . . from within and . . . not from without,” to “ring-fence the independence of the judges, the judges’ decision making and the institution,” she said.

Chief Justice Koome’s major challenge will be to deliver justice to Kenyans. With a compromised legislature and an executive that is working on its own agenda, as the custodian of law, the judiciary remains the only guardrail protecting Kenya from tumbling down the precipice of chaos.

It would be tragic if the Chief Justice were to cede her power to the executive.

Governments have a propensity to oppress and Uhuru Kenyatta’s government isn’t unique in the little regard it has for justice. Justice Koome inherits a judiciary that has been battered to a pulp by the regime; punitive budget cuts, disregard of the courts’ authority, derisive rhetoric. How else can we explain the president’s delay in appointing the 41 judges recommended by the the JSC in mid-2019? Chief Justice Maraga complained that the delay had made work difficult for the courts while Kwamchetsi Makokha argued that the president’s agenda was to diminish the stature of the judiciary. I appeal to Chief Justice Koome’s faith to make the judiciary work for Kenyans and in this regard, an episode in Exodus 1 demands our attention since it a turning point in human history. Its heroines are two outstanding women, Shiphrah and Puah. The Pharaoh instructed these two midwives thus: “When you are helping the Hebrew women during childbirth on the delivery stool, if you see that the baby is a boy, kill him; but if it is a girl, let her live” (Exodus 1: 16). But they did not carry out the order: “The midwives, however, feared God and did not do what the king of Egypt had told them to do; they let the boys live”(1:17).

Commenting on the episode, Rabbi Jonathan Sacks termed it as “the first recorded instance in history of civil disobedience”. The two women refused to obey the order of their world’s most powerful man, an order they judged unethical and inhuman. Questioned by Pharaoh they explained: “Hebrew women are not like Egyptian women; they are vigorous and give birth before the midwives arrive,” (1: 19) to which he had no reply.

In refusing to follow the orders, Shiphrah and Puah showed that the ultimate sovereignty lies with God. The notion that sovereignty belongs to the people is a fallacy. Rabbi Jonathan Sacks argues that moral law transcends and may override the law of the state.

The judiciary remains the only guardrail protecting Kenya from tumbling down the precipice of chaos.

During the 1946 Nuremburg trials, the war criminals’ plea was that “they were merely obeying orders, given by a duly constituted and democratically elected government”. But for the new legal concept of a crime against humanity, the guilt of the perpetrators of the holocaust would have remained unestablished. Sacks observes that “The Nuremberg principle gave legal substance to what the midwives instinctively understood, that there are orders that should not be obeyed, because they are immoral.” So, any human order transgressing the will of God is by that fact alone ultra vires. Shiphrah and Puah were the first to teach humanity the moral limits of power.

We are a country, it seems, that is bankrupt of goodness. A space filled with the evil that we commit against each other. If we do not cooperate in shunning evil against others, a good judiciary will be as useless as a scarecrow after the harvest. We should do good because that is what a human being is supposed to do.

It confounds me how attractive evil is to others. We give undue attention to the whispers or the shouts of evil. Not that evil does not demand confrontation, but I wonder why it is so elevated. Toni Morrison, the winner of the 1993 Nobel Prize for Literature, noted that “Evil has a blockbuster audience; Goodness lurks backstage. Evil has vivid speech; Goodness bites its tongue.”

To understand goodness, Toni explored the term altruism, selfless compassion for the “other”. In her research, she learned something about altruism, its weight and its relevance in contemporary thought. What defined goodness for her was an incident that occurred within the Amish community of Pennsylvania in the United States. On the 2nd of October 2006, 32-year-old Charles C. Roberts arrived at the West Nickel Mines Amish School and ordered the male students to leave. He also allowed a pregnant woman and three women with babies to leave. Roberts then lined up 10 girls aged between 9 to 13 and shot them, killing five girls and injuring five others. Then he killed himself.

Although Roberts was not Amish, the community forgave him, refused to seek justice, demand vengeance, or even to judge him. They visited and comforted his widow and children, just as they embraced the relatives of the slain. In refusing to judge Roberts, the Amish community asserted that it was God’s place to judge. They said nothing or very little to outside inquiry, held no press conferences and submitted to no television interviews, only cautioning, “Do not think evil of this man.” They buried their dead, then attended the killer’s funeral the following day. Then they built a new schoolhouse, having torn down the old one.

Their silence following the slaughter, along with their deep concern for the killer’s family, seemed to Toni characteristic of genuine “goodness” or altruism and she became fascinated with the term and its definition.

Toni Morrison found that altruism is not an instinctive act of selflessness, but a taught and learned one. Altruism can also be used to enhance the ego in a desperate attempt to decrease self- loathing. Others have argued that altruism is embedded in our genes to enable the sacrifice of self for others. Such sacrifice for kin and/or community is innate, they claim, and is built into our genes, just as we hold individual conquest of others to be an instinctive drive that serves evolution.

This goodness can be learned. We can be taught goodness until it becomes a habit of helping strangers and/or taking risks for others at our expense. We can override that instinct which inclines us to protect only our own kin or group and broaden it to include all the people we meet, an unquestioning compassion for all.

Justice John Khamoni (rtd) learnt this goodness and the Law Society of Kenya recognised him for his distinguished service in the administration of justice in 1999, an award which the then Chief Justice barred him from receiving. In 2015 Justice Khamoni was awarded the Justice C. B. Madan prize for his contribution to the administration of justice. Justice Khamoni is in my view an example of altruism within the judiciary.

We can override that instinct which inclines us to protect only our own kin or group and broaden it to include all the people we meet.

Justice Khamoni’s acts of goodness were carried out at significant risk to his career in the judiciary. In November 1991, at the peak of the calls for political reforms, the movement’s leaders were arrested and charged. A magistrate had refused the bail applications for James Orengo and Luke Obok and the case had come before the newly appointed Justice Khamoni at the High Court in Kisumu. In that charged atmosphere, Khamoni considered the refusal to grant bail on purely legal grounds and both applicants were granted bail.

Justice Khamoni’s vision of the criminal justice system was one that was averse to oppression. He held that the High Court had a duty to prevent vexatious and oppressive prosecutions, instituted for an improper purpose and hence an abuse of the court.

The two midwives, Shiphrah and Puah, acted like good people. As did Justice Khamoni. By their acts we learn that they “feared God”, a generic description of those who have a moral sense.

Do we wonder why Hon. Amos Wako changed during his 20 years as Kenya’s Attorney General? He served as the LSK chairman from 1979 to 1981 and was a member of the UN Human Rights Committee between 1985 and 1992. The honour accorded him and the awe in which he was held reached beyond Kenya to places far away and in countries where the intelligence of Africans is the source of much amusement. Expecting that he would check the Nyayo era excesses turned out to be a futile dream. As head of the state law office, he oversaw the torture and oppression of Kenyans agitating for multi-party politics. Wako witnessed the wanton abuse of human rights without flinching. And although Kenya achieved multi-party rule and change of constitution during his tenure, the KANU government tethered him to the Goldenberg scandal during his entire time as Attorney General which led to his being sanctioned by the US government.

Do we wonder why Hon. Amos Wako changed during his 20 years as Kenya’s Attorney General?

The government is a toxic soil. This we now know. This soil is bad for certain kinds of flowers, to borrow the words of Claudia at the end of Toni Morrison’s The Bluest Eye. Certain seeds this soil will not nurture, certain fruit it will not bear. Can Chief Justice Koome thrive in this soil?

When we say the past is just a prologue, we mean the past should not enslave us; rather we spring into the bright day from lessons learnt from that dark past. Prologue because we follow those such as Shifra and Puah who paved the way.

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Will CJ Koome Obey Pharaoh or Will She Walk the Path To Free Wanjiku?

By Francis Omondi Stifling the “hustler” vs “dynasty” debate will not save us from the imminent implosion resulting from Kenya’s obscene inequalities. While the debate is a welcome distraction from our frequent divisive tribal politics, leaders in government and society are frightened that it might lead to class wars. Our sustained subtle, yet brazen, war against the poor has made class conflict inevitable. If only we had listened to Hon. J. M. Kariuki, the assassinated former Member of Parliament for Nyandarua (1969-1975), and provided the poor with the means to develop themselves, perhaps the prospect of revolt would now be remote.

Could this be the angry ghost of J.M. Kariuki coming back to haunt us? Listen to his voice still crying from the grave, as did his supporters at a rally in 1974: “We do not want a Kenya of ten millionaires and ten million beggars. Our people who died in the forests died with a handful of soil in their right hands, believing they had fallen in a noble struggle to regain our land . . . But we are being carried away by selfishness and greed. Unless something is done now, the land question will be answered by bloodshed” (quoted by Prof. Simiyu Wandibba in his book J.M. Kariuki). Fired by this speech, his followers set ablaze 700 acres of wheat on Mzee Jomo Kenyatta’s farm in Rongai and slaughtered cattle with malice. Thus did J.M. invite his death.

What Hon. William Ruto propounds in his hustler vs dynasty debate is a shrewd way of redefining Kenyan identity politics. Ruto is re-directing the political narrative from the “us” vs “them” of tribalism, to one characterised by the poor and desperate (hustlers) who have seen subsequent governments betray their hopes for a better life, pitted against “them”, Ruto’s rivals, the offspring of politicians born to unfair and unearned privilege.

Wycliffe Muga, the Star newspaper columnist, has eloquently described them as the “sons of a hereditary political elite who absorbed all the benefits that came with independence, leaving ‘the rest of us’ destitute and having no choice but to beg for the crumbs under their table.” By opting for an alternative approach, Ruto hopes to avoid playing the tribal card to attain the presidency. For, besides his own, he would need the support of at least one other of the five big tribes who often reserve support for their own sons unless there is a brokered alliance. But even then, the underlying logic of Kenyan politics remains that of identity politics, which creates a binary narrative of “us” against “them”. Meanwhile, Ruto has not only radicalised the poor, but he has also hastened the country’s hour of reckoning — judgement for the years of neglect of the poor — and this may ignite the tinder sooner we imagine.

In their article in The Elephant, Dauti Kahura and Akoko Akech observe that, “Ruto might have belatedly discovered the great socio-economic divide between the walala-hoi and the walala-hai in Kenya”. Ruto has galvanised the poor and their plight around the banner of the “hustler nation”, a nation aspiring to erase the tribal or geographical lines that have kept Kenyans apart. As a result the poor are restless as they compare their state with the ease of the lives of the affluent. But Ruto is not organising to awaken class-consciousness among the exploited. ‘As Thandika Mkandawire, citing Karl Marx, observed, “The existence of class may portend class struggles, but it does not automatically trigger them. It is not enough that classes exist in themselves, they must also be for themselves”’, Kahura and Akech further reiterate.

The problem kicks in immediately he points to the “dynasty”. In juxtaposing the hustlers and dynasty, the poor find a target of hate, an object of their wrath. This situation can easily slide into violence, the violence emerging only when the “us” see themselves as all good and the “them” as all evil.

I worry this controversy has led us to that radicalisation stage where the poor see themselves as the good children of light fighting evil forces of darkness. In our case, the so-called hustler nation believe they are against the deep-state which doesn’t care about them but wants to give to the dynasty that which is due to them. They believe that this collusion between deep-state and dynasty is preventing them from reaching prosperity and so they blame their situation on those who they perceive to be the cause of their wretchedness. Interestingly, the colonial state always feared the day when the masses would rise up and topple it. Unfortunately, Ruto is using the crisis of the underclass created by the colonial state and perpetuated by the political class for political expediency and for his own self-advancement.

By declaring himself the saviour of the hustlers from the dynasties, Ruto — who is devoid of any pro- democracy and pro-suffering citizens political credentials — is perceived to be antagonising the Kenyatta family’s political and financial interests. He has with precision stoked the anger of the poor against particular political elites he calls dynasties and the Odingas, the Kenyattas, the Mois and their associates have become the hustler nation’s enemy. So, one understands why President Uhuru Kenyatta considers Ruto’s dynasty vs hustler debate “a divisive and a major threat to the country’s security”, which he fears may degenerate into class warfare.

Hon. Paul Koinange, Chairman of the Parliamentary Administration and Security Committee errs in his call to criminalise the hustler vs dynasty narrative. If this is hate speech, as Koinange wants it classified, then neglect of the poor by their government is a worse form of hate speech. The application of policies favouring tender-preneurs at the expense of the majority poor, landless and unemployed will incite Kenyans against each other faster than the hustler vs dynasty narrative. The failure to provide public services for the poor and the spiralling wealth of the political class must be confronted.

We have been speeding down this slippery slope for years. According to the Kenya National Bureau of Statistics (KNBS) data released in December 2020, only 2.92 million Kenyans work in the formal sector, of which 1.34 million or 45.9 per cent earn less than Sh30,000. If we accept that the informal sector employs another 15 million Kenyans, an overwhelming majority (71 per cent) would be in micro-scale enterprises or in small-scale enterprises (which make up 26 per cent). This implies that 97 per cent of our enterprises are micro or small, and these are easily wound up. The situation is exasperated by the opulence at the top. The UK-based New World Wealth survey (2014) conducted over 5 years paints a grim picture of wealth distribution in Kenya. Of the country’s 43.1 million people then, 46 per cent lived below the poverty line, surviving on less than Sh172 ($2) a day.

The report shows that nearly two-thirds of Kenya’s Sh4.3 trillion ($50 billion) economy is controlled by a tiny clique of 8,300 super-wealthy individuals, highlighting the huge inequality between the rich and the poor. Without a clear understanding of these disparities, it is difficult to evaluate the currents that are conducive to the widening of this gap not to mention those that would bridge it. Hon. Koinange should be addressing these inequalities that the masses are awakening to rather than combatting the hustler narrative. Our government must be intentional in levelling the playing field, or live in perpetual fear like the British colonials who feared mass revolt across imaginary ethnic lines.

In Kenya, past injustices have yielded gross inequalities. In Reading on inequality in Kenya: Sectoral Dynamics and Perceptions, Okello and Gitau illustrate how state power is still being used to perpetuate differences in the sharing of political and economic welfare. Okello further observes that: “In a country where for a long time economic and political power was/has been heavily partisan, where the state appropriated for itself the role of being the agency for development, and where politics is highly ethnicised, the hypothesis of unequal treatment has been so easy to build.”

This, and not the euphoria of the hustler nation, is the pressure cooker that is about to explode. The horizontal manifestation of inequality stemming from the failure of state institutions and policies that have continued to allow inequalities to fester is what should be of concern to the state. How can the government not see the risk such extreme economic disparities within the population pose for the nation’s stability?

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Will CJ Koome Obey Pharaoh or Will She Walk the Path To Free Wanjiku?

By Francis Omondi We, the people, and our leaders are in terrible jeopardy. An ominous cloud hangs over us as the 2022 elections approach. The retiring Chief Justice David Maraga was perceptive when he warned of drumbeats of political war. His words gave me an eerie feeling. A Luo in an election year. How can we bring these bloody elections to an end?

The Kenyan election cycle has become synonymous with bloodletting, which has disproportionately affected the Luo. The general election conjures up memories of 1969. The first parliament was ending in December and Kenya was to conduct the first post-independent general election. Following the 1966 fall-out at the Limuru Convention, a frightened government sought to hold on to power at all costs. This would not be easy. The opposition Kenya People’s Union (KPU) formed in 1966 presented them represented a threat. To make sure they retained power, Jomo Kenyatta sanctioned the now infamous oath-taking to forge the uthamaki ideology to keep the presidency within the Gikuyu oligarchy and mobilise the Gikuyu folk around this narrative, thus binding the Gikuyu, Embu and Meru communities (GEMA) in a spiritual and political pact under KANU in an imaginary nation of Uthamakistan.

On July 5th they gunned Tom Mboya down in broad daylight. Although Mboya was a KANU leader, according to David Goldsworthy in Tom Mboya: The man Kenya Wanted to Forget, he had to be eliminated because he posed a threat to the presidency. Killed by a bullet coated in the blood of the oath. Since we have been conditioned to understand politics through the prism of tribe, Mboya’s assassination snapped the already loose cord that tied the Luo to the Kikuyu community after the fall-out of Jomo Kenyatta and Odinga Oginga in 1966 and the mass state-led propaganda Kenyatta and his cabal undertook to paint the Luo community to the Kikuyu as a backward and violent community. The resulting protests against President Kenyatta at Mboya’s requiem mass marked the beginning of animosities that are still felt today.

Although Kenya has remained silent about Mboya’s murder, the effects endure to this day. As Yvonne Owuor, winner of the 2003 Caine Prize for African Writing, aptly observes, after Mboya’s death Kenya gained a third official language after English and Kiswahili: Silence. But I wonder what to expect when a train stops at a lakeside town in 2022. In 1969 the train “offloaded men, women, and children. Displaced ghosts. In-between people. No one to blame. Most of the witnesses were dead. Others had vowed themselves to eternal silence. This was the same as death,” in the words of Yvonne.

After Mboya’s death, the events of 25 October 1969 in Kisumu exacerbated the despair among the Luo. Jomo Kenyatta had come to open Nyanza Provincial General Hospital which had been built with aid from Russia. Although Odinga was not invited, he arrived in force, for it was he who had started the project with Russia’s help. In the ensuing mayhem, the presidential escort and the paramilitary General Service Unit (GSU) shot their way through the crowd, killing many and not stopping the shooting for 25 kilometres outside the town.

If Mboya died, then everything that could die in Kenya did. Including school children standing in front of a hospital the head of state had come to open, lamented Yvonne. The events emptied central province of a people they now called cockroaches, nyamu cia ruguru (beasts from the west). Who spoke of this exile, or of the souls evicted from our world?

The provincial security apparatus had warned people to stay away from Kisumu because of the protests following the brazen assassination of Tom Mboya, but as political scientist Akoko Akech asks, “Why did the presidential security shoot children, children in Awasi, some 50km away from the hospital?”

The killings were framed as animosity between the Luo and Kikuyu communities, but they were not. It was a group in power using government machinery to crush a perceived enemy. The Luo were not fighting Kikuyu people in the violence that broke out as a large crowd menaced Kenyatta’s security. The security forces killed indiscriminately, hence the “Kisumu massacre”. While the official body count was 11, historians close to the event such as B.A. Ogot put the numbers at 100 people dead. The school pupils along the road at Awasi had come out to sing praises to their president but his security forces silenced them and sent them to their graves instead.

The people were silenced, the records expunged and the photographic and film evidence of the event destroyed, and we would not have seen the devastation were it not for the oft-reproduced single monochromatic photograph of the chaotic scene taken by Mohammed Amin, and Satwant Matharoo’s film footage that was shown to the British audiences by the WTN. Even the Truth, Justice and Reconciliation Commission (TJRC) removed the oral eyewitness accounts and memoranda from its last report on the colonial and post-independence massacres. The now official record is an extract from the unofficial Report of the Commission on Truth, Justice, and Reconciliation.

In his book Exclusion and Embrace, Prof. Miroslav Volf captures the experience of the Luo people best when he avers, “We demonise and bestialise not because we do not know better, but because we refuse to know what is manifest and choose to know what serves our interests.” Hence, the proscription of KPU made Kenya a de facto single party state and established a pan-ethnic nationalism. The government accused KPU of being subversive, stirring up inter-ethnic strife, and accepting foreign money to promote anti-national activities, which included the building of the aptly named Russia Hospital that the president had come to open. Having demonised Nyanza Province, it was easy to exclude her from “national” development plans.

Unless we confront the past, murders like that of the electoral official Chris Musando in 2017 will recur. Kenyan police have a long history of using excessive force against protesters, especially among the Luo in western Kenya. Of the over 1,100 people killed during the 2007 post-election violence, over 400 were shot by police in the Nyanza region. According to Human Rights Watch, in 2013 police killed at least five demonstrators in Kisumu who were protesting a Supreme Court decision that affirmed Uhuru Kenyatta’s election as president. And in June 2016 police killed at least five and wounded another 60 demonstrators in Kisumu, Homabay, and Siaya counties. The state acknowledging these crimes and making public apologies to the Luo will, in my view, end the continued violence against the community.

It is the duty of the current Kenyan state to reach out to the Luo community for the killings since 1969. If we can trace the records of Nazi Germany atrocities during World War II, why can’t we do the same in Kenya? Why hasn’t any government felt the duty to at least apologise or acknowledge the trauma?

In December 1970, during a state visit to Poland which coincided with a commemoration of the Jewish victims of the Warsaw Ghetto, West German Chancellor Willy Brandt spontaneously dropped to his knees. Although he uttered no word during his Kneifall von Warschau, his Warsaw Genuflection, Brandt later wrote in his autobiography that upon “carrying the burden of the millions who were murdered, I did what people do when words fail them”. The Kenyan government should do for the Luo what Germany’s leaders did for the Jewish victims of the Nazis.

In 2011 German leaders again expressed deep remorse for the suffering their nation had inflicted on Poland and the rest of Europe during World War II. “I bow in mourning to the suffering of the victims,” German President, Frank-Walter Steinmeier said at a ceremony in Warsaw. “I ask for forgiveness for Germany’s historical debt. I affirm our lasting responsibility,” the statesman said, calling the war a “painful legacy”. Where are the presidents of Kenya who have expressed such remorse?

Even if no one does, we remember. As long as it is remembered, the past is not just the past; it remains an aspect of the present. A remembered wound is an experienced wound. Toni Morrison is right when she says in Beloved that, “Deep wounds from the past can so much pain our present that, the future becomes a matter of keeping the past at bay”. Without apologies, the crimes are bound to recur and our wounds to remain uncovered.

I am terrified by the state’s silence, the wishing away of the crimes and the failure to reach out to the Luo community. While President Steinmeier has called WW II a “German crime” that his nation will never forget, Kenya’s leaders are quiet and want Kisumu forgotten. How can the Luo people forgive crimes no one owns? How can the scar they bear be concealed? I fear that without acknowledgment, ownership and apology, we cannot build any lasting bridges.

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By Francis Omondi

The coronavirus has exposed and exacerbated deep ecclesiastical problems in the identity and witness of the church. Measures to mitigate the pandemic have pushed our church, the Anglican Church of Kenya (ACK), further into the shadows. For safety reasons, we have had to abstain from physical contact and public gathering and we are, therefore, not able to hear God’s word read or preached, and to receive the sacrament, in the way that we are used to. It has been unsettling.

The Church’s identity is fundamental to her visibility and, therefore, witness. The Church’s visibility is the most powerful message the world can receive, a message the world can trust because it shows the presence of God in our world. This visibility encourages and motivates the world to view the Church’s attributes as a reflection of the God she represents. Tied to the Church of England, the ACK shares the identity of a diverse “fellowship of one visible society whose members are bound together by the ties of a common faith, common sacraments, and a common ministry”, as the bishops attending the Lambeth Conference of 1920 envisioned. This has crystalised into the Anglican way of following Jesus in the world in the “fulness of Christian life, truth and witness”.

The ACK is an integral part of the Anglican Communion, which binds her to the order and doctrine of the Anglican Church. But her context is different, demanding, therefore, a unique response to best enhance our visibility. Until the emergence of this global pandemic, we have had little motivation to rethink and adjust our visibility in context.

Our moment of crisis confronts us with the question of whether our present ways can sufficiently guide us. Some consider the pandemic transient. They estimate the duration it will last, and ponder what we shall find on the other side. They will do everything in order to maintain our common life within our norms, allowing for as little disruption as possible. It is however clear that this crisis is monumental in scale, and will force radical shifts in our society. In a recent article, the Malawi academic, Paul Tiyambe Zeleza, makes a disturbing prediction of the grim future we face. He cites Mr Richard Kozul-Wright, the Director of the Division on Globalisation and Development Strategies at UNCTAD, who noted that, “There’s a degree of anxiety now that’s well beyond the health scares which are very serious and concerning . . . the kind of meltdown that could be even more damaging than the one that is likely to take place over the course of the year”.

Peering into tomorrow’s world from the depths of crisis, can the ACK seize the moment and readjust to better her visibility?

The epistemologist and historian of science, Thomas Kuhn, calls scientific revolution a paradigm shift. In his book The Structure of Scientific Revolutions, Kuhn describes science as a process characterised by pre-paradigmatic, normal and revolutionary patterns emerging from the interactions of its component scientists, what we would call a complex adaptability system. According to Kuhn, a scientific revolution occurs when scientists encounter anomalies in the prevailing paradigm which they cannot resolve within their scientific framework. The paradigm, in Kuhn’s view, is not only the current theory, but the entire worldview in which it exists, and all the implications which come with it. Kuhn acknowledges anomalies within all paradigms, but maintains that scientists accommodate them as acceptable levels of error. Kuhn notes that when enough or significant anomalies accrue against a current paradigm, this throws the scientific discipline into crisis. It is during such a crisis that fresh ideas, perhaps ones previously discarded, are tested. A new paradigm is thus established, gaining its own new adherents and sparking an intellectual “battle” between the followers of this new paradigm and the adherents of the old.

Problems posed by the pandemic: the prevailing Anglican paradigm

The ACK Constitution of 2002 describes the church’s order of faith at length in Article III—On Doctrine and Worship. There are 14 provisions under this article that define the ACK’s position on following Christ. It is explicit from Article III(5) that the ACK Order of Faith aligns to that of the Anglican Churches worldwide.

The Church further accepts the Lambeth Quadrilateral of 1888 which outlines the Anglican essentials for a reunited Christian Church. The text of the Articles affirms the following: the Holy Scriptures of the Old and New Testaments as “containing all things necessary to salvation”, and as being the rule and ultimate standard of faith; the Apostles’ Creed as the Baptismal Symbol and the Nicene Creed, as the sufficient statement of the Christian Faith; the two Sacraments ordained by Christ Himself—Baptism and the Supper of the Lord—ministered with unfailing use of Christ’s Words of Institution, and of the elements ordained by Him and The Historic-Episcopate, locally adapted in the methods of its administration to the varying needs of the nations and peoples called of God into the Unity of His Church.

These affirmations, together with other teachings, laws and liturgical practices approved in this province and by those others that we are in fellowship with, can, in Kuhnian terms, be regarded as the ACK’s paradigm. For at the core of Kuhn’s thought is the notion that “paradigms,” are scientific theories or worldviews unique enough to attract an enduring group of adherents away from competing modes of scientific activity, and open-ended enough to leave many problems for the practitioners in the group to resolve. The ACK’s liturgical worldview and practice, draws from the Book of Common Prayer (BCP), and Our Modern Services (OMS), translated in several languages.

Anglicans believe that the Church is the visible body of Christ on earth. She manifests this notion in Christians gathering together—in such a gathering is Christ present—and speaking his word, read out, and/or expounded. Christ is present in the sacraments that link Christians mysteriously to him, and in the clergy as they administer sacraments, absolution and blessings. Since the earliest days of the Church, Christians have gathered together to bless, break and share bread and to bless and share a cup of wine in obedience to the Lord’s command, given on the night before He died, to “do this in remembrance of me”. The Eucharist is what catholic Christians understand to be the most doxological act they can perform when they gather for “the principal act of Christian worship on the Lord’s Day and other major Feasts” (BCP:14 and also 2002 OMS:55). To hold such a service, there should be communicants other than the minister at every celebration of Holy Communion. From the time of Thomas Cranmer, mainstream Anglicanism has insisted that we celebrate the communion service as a community, with no fewer than two people. The Rubrics at the end of the Book of Common Prayer, Communion Office, declare that “there shall be no celebration of the Lord’s Supper except there be a convenient number to communicate”, which it defines to be “three at the least” in a parish.

We anchor the importance of the Eucharist in the church’s law. Along with Baptism, the Lord’s Supper, or Holy Communion, is a “Sacrament ordained of Christ” and “a sacrament of our redemption by Christ’s death”. For instance, the Canons of the Church of England teach the importance and centrality of the Eucharist. Canon B14 requires the celebration of the Holy Communion in at least one church in every benefice on all Sundays and principal Feast days, and on Ash Wednesday and Maundy Thursday. Canon B15 teaches that it is the duty of all the confirmed to receive the Holy Communion regularly, and especially at Christmas, Easter and Pentecost.

Over time, many factors contributed to a general decline in the celebration of the Eucharist every Sunday well into the late 19th and early 20th centuries, and Morning Prayer became the common service of worship on the Lord’s Day. ACK, a plant of the Church Missionary Society (CMS) which was more an evangelical low church, did not place the Eucharist as high in practice as the gathering of Christians in worship. There are Anglicans who gather for corporate prayer without the Eucharist. According to Richard Hooker, Christians assembled for corporate prayer, take part in communion with Christ himself, “joined . . . to that visible, mystical body which is his Church”. Hooker understands the corporate prayer of Christians as having a spiritual significance far greater than the sum of the individual prayers of the individual members of the body. He had very much in mind the assembly of faithful Christians gathered for the Daily Office. However, the Holy Eucharist is gaining precedence over Morning prayer, communion-wide, as the principal act of worship on Sunday.

What Kuhn argues of Science, that “rigorous and rigid” preparation is what helps to ensure that the received beliefs are fixed in the student’s mind, can be said of this paradigm influencing our understanding of when the Church gathers to worship, share the word and the sacrament. For scientists, Kuhn asserts, go to great pains to defend the assumption that scientists know what the world is like. And that “normal science” will often suppress novelties which undermine its foundations. Research is, therefore, not about discovering the unknown, but a strenuous and devoted attempt to force nature into the conceptual boxes supplied by professional education.

How churches responded to COVID-19 restrictions

The COVID-19 crisis has presented us with an immense challenge to this paradigm. The civil authorities stopped the physical gathering of Christians in churches, and ecclesial authorities endorsed this. In response, the churches adjusted to the order in a variety of ways to maintain visibility and witness.

Many churches switched to online service on internet platforms. Some turned to radio and TV services. In doing this they continued preaching the word of God and shared prayers. Others, who were outside the digital and mass media orbit turned to household and family worship sessions. Home alone, people are sustained in the theological assurance of Christ’s presence in our time of need. So, in such moments of crisis, people who wanted to draw closer to God, found connections through mass media and online platforms. They heard the word preached but had a challenge in celebrating the Eucharist. The sacraments are material, personal encounters; they do not exist in any other form; the Eucharist cannot be administered electronically. How can the bread and wine on the HD monitor, in a live-streamed mass, make the Eucharist? In invoking the words of the institution, “the Celebrant is to hold . . . or lay a hand upon” the bread and the wine; there is no gray area, and so it is not permissible to consecrate the Eucharist from a distance.

Many parish churches have, therefore, suspended the celebration of Holy Communion until they can meet together in person again. With this, has ceased the practice of public baptism for the duration of the restrictions that have been placed upon the Church.

The spiritual sacrament is an option that other churches have taken. We administer spiritual communion when a person desires to receive the sacrament, but cannot eat the bread and drink the wine. The celebrant assures this person that they have received all the benefits of communion, even though the person has not received the sacrament by mouth (BCP:457). This enables the spiritual reception, by observing a celebration of the Eucharist that is at the heart of the sacrament, even if physical partaking is not possible.

For others, the option of looking on was not workable. So, the parish congregation was informed when the Holy Communion would be celebrated in the priest’s home. Members of the congregation were provided with the programme and readings for the service and were invited to pray and read scriptures so that the service would take place within some kind of extended communal act of worship in that parish, and not as a private act of devotion.

In other communities, priests administered “drive-by communion”, where individuals drove through picking up the emblems of communion and driving away after the service. This presented a public health concern and further distorted the essential link between a communal celebration and the culmination of that celebration in the reception of the Eucharistic bread and wine.

Priests also made personal delivery of the emblems of communion to members in their homes. In these cases, the priest celebrated the Mass on Sunday and consecrated all the bread to be taken to the parishioners. Then the priest (and a few Eucharistic ministers) went to people’s homes (having cleansed their hands and kept the envelopes containing the emblems in brand new ziplock bags to avoid contamination). Depending on the size of the congregation, they applied the method for distributing the sacrament safely to people in their homes on Sundays.

Shocks to ACK practices during COVID-19

Kuhn maintains that there are anomalies within all paradigms which are considered acceptable levels of error or ignored and not dealt with. The above responses expose the immense anomalies accommodated within the Anglican paradigm. Although they solve the current problem, they provide solutions within the accepted norm with certain inconsistencies.

The most sacred feature of Christian gathering in the presence of Christ is the holy Eucharist, administered by the priest, and in a consecrated space. The Eucharist claims the actual presence of Christ and the reality of blessing when the elements are consumed by a real congregation. One therefore receives sustained spiritual blessings through frequent participation in such a service.

Where physical gathering is not possible, an alternative is foreseen where the parishioners are provided with a liturgy adapted from “Communion under Special Circumstances” (1979 BCP:396-399) to perform at home, as well as a bulletin and the lectionary readings. This is as Justin Martyr describes in his First Apology 65: “And when the presider has given thanks and all the people have assented, those called by us ‘deacons’ give to each one of those present to share the bread and wine and water over which thanks have been given, and they take [them] to those not present”.

Kuhn insists that should significant anomalies accrue against a current paradigm, it would throw the scientific discipline into a state of crisis. Such a crisis would demand retooling. Again, Kuhn explains, “So long as the tools a paradigm supplies continue to prove capable of solving the problems it defines, science moves fastest and penetrates most deeply through confident employment of those tools. The reason is apparent. As in manufacture, so in science —retooling is an extravagance to be reserved for the occasion that demands it”.

A crisis that locks the sanctuary and separates the clergy from the flock, would dim our visibility and stifle our liturgical life. We need not ask in such moments which is or is not permissible of the sacraments, as observed Rowan Williams; that leads to a dead end. Rather, the question for us sacramental people, he said, was not whether a practice was “right or wrong,” but “how much are we prepared for this or that liturgical action to mean?”

Since sacraments are actions that give new meaning to things, the current questions about the way we worship in this time of radical physical distancing invites the question of our preparedness for a sacramental encounter to have an alternative meaning. We should rather ask: what are we prepared for it to signify?

How shall we gather again after the period of restriction, during which we experienced the virtual church?

The attempts to stay in fellowship opened up an alternative way of gathering—the virtual meeting. Many Christians, who went online or turned to radio and television, now have multiple platforms on which to gather and connect. It will be difficult to restore the pre-coronavirus mode. We have arrived at a liberalised space of worship, where the anonymity of Christians will increase rather than decrease. For the individual Christians will have greater control over what they receive and will shut out what they do not desire.

Churches with a tradition of keeping a list of members that forms the basis for their local churches and denominations will experience difficulty in preventing their members from wandering across the field. We frowned upon moving from one church to another and regarded it as a kind of “sin”. The virtual church now gives Christians the anonymity and freedom to conceal their movements. People will belong to multiple congregations, and most probably become loyal to none.

Will our pastors and priests continue to signify the presence of Christ among us? Or will Christians maintain their newfound ways of experiencing God encountered during the period of restrictions?

We have up to now had a clergy-dependent way of following Christ. Pastors and priests have played a key role in the lives of Christians beyond religious matters. Their role therefore has remained vital, even in the absence of sacraments, as during the coronavirus crisis. This is because the church gathers around its priest who, besides administering the sacraments, pronounces the blessings, grants absolution of sins and who, through preaching and teaching the word, edifies the flock. There is a sense in which the flock is realising the access they have to God through Christ. Through prayers and listening to God’s word alone, some are developing an increased intimacy with Christ present in their homes. While for others, through their experience of the Daily Office, morning and evening prayers, they have found meaning in the word’s ministry and prayer.

Suppose the restrictions are lifted, will Christians opt for a continued non-physical experience of the sacrament? Out of the coronavirus crisis emerged acts of personal delivery of communion to members in homes, drive-in communion, and a rekindled spiritual communion. Others have fasted the holy communion since the lockdown. The restrictions were necessary to protect neighbour and self from harm. Is it possible that, facing a prolonged threat and though allowed physical contact, many will prefer non- physical interactions? Taking communion to members’ homes may become the norm and that obviates the need of gathering. Some may become so accustomed to a spiritual communion which they have found exhilarating, that they will allow the sacraments to live up to their purpose as spiritual pointers.

There are observable movements away from the norms. ACK Christians realise that the sacraments and institutions that support their practice are symbolic enactments of processes of mind, heart and deed that could be expressed in other ways. They can encounter Christ through prayer, his word through the Internet and mass media, the non-physical partaking of sacraments, and yet faithfully be in sacred fellowship with the Catholic Apostolic Church of Christ. Will these changes in perspective spark a change in how we practice our faith?

A new awakening

The forecast is that the social and economic impact of the coronavirus will overwhelm weaker economies with fragile social safety nets. The Kenyan Anglicans faithful will strain to prop up this Church, a Church built with imperial concrete on the shifting sands of poverty. Such a structure, designed for the empire, loaded with dogmas, systems and traditions, incongruent with scriptures, and in desparate need of support and foreign aid, will not stand. Not for long. Besides, ACK does not have the backing of market capitalism and liberal democracy that other western countries of the communion have.

Perhaps the good to come out of this period might be an awakening to the pre-existing conditions of our religious decay. We were not as healthy as we made it to appear. Apart from being a medical condition, COVID-19 is also, and to a greater extent, a social virus which will eviscerate the Anglican Church as we know it today. We will wake up to an unfamiliar world after this pandemic. How shall we mitigate against extinction?

Scientists would not look backward in choosing from among existing theories when searching for alternatives. They seek “the fittest way to practice future science” says Kuhn, and therefore base their decision not on information about previous contributions but on the expected value of their own prospective contribution to a paradigm.

In an enthralling narrative on why civilisations die, Rebecca Costa recounts how when societies reach a cognitive threshold they can’t chart a path from the present to the future. They hit a gridlock. And there they die off. She explains that the fall occurs because problems become too many and complicated for the people of that time and place to solve. Such cognitive overload can happen to any system and may already be happening to the Anglican Church.

Costa gives two signs that point towards breakdown. First, there is a gridlock. Instead of dealing with what everyone can see are major problems, people continue as usual and pass their problems on to the next generation. Then there is a retreat into irrationality, for facts no longer make sense, and people take refuge in religious consolations.

How Judaism endured and survived the atrocities of the Roman empire, is a lesson for us today. The Jews developed a remarkable response to the destruction of the Second Temple (70 CE). Faced with the loss of the entire infrastructure of the Temple, its Priests, and sacrifices, Rabbi Jonathan Sacks explains, Judaism translated the entire system of divine service into the everyday life of ordinary Jews. “In prayer, every Jew became a Priest offering a sacrifice. In repentance, he became a High Priest, atoning for his sins and those of his people. Every synagogue, in Israel or elsewhere, became a fragment of the Temple in Jerusalem. Every table became an altar, every act of charity or hospitality, a kind of sacrifice”, Sacks elaborates. The Jews did not abandon the past.

But they did not cling to it either. They refused to take refuge in irrationality, Sacks observes, but they “thought through the future and created institutions like the synagogue and house of study and school that could be built anywhere and sustain Jewish identity even in the most adverse conditions”. Judaism has always survived, unlike other world civilizations, in one sense because of Divine providence, but Sacks attributes it also to “the foresight of people like Rabban Yochanan ben Zakkai who resisted cognitive breakdown, created solutions today for the problems of tomorrow, who did not seek refuge in the irrational, and who built the Jewish future”.

Our crisis presents us with the incentive to desire a new paradigm, and to invite others to the benefits it proffers. Kuhn describes shifts in paradigm allegiance as a conversion experience driven by the efforts of individual scientists to persuade each other. As Anglicans, we must contemplate worst-case scenarios, plan generations ahead and ask ourselves what we would do, if… What saved the Jewish people, Rabbi Sacks concludes, “was their ability…. never to let go off the rational thought”, and refusing to let their loyalty to the past come in the way of their future, they kept planning for the future.

Towards a new paradigm: priesthood for all believers

We should make all Confirmed Christians priests, give them authority to serve in the priestly role in church liturgy, sacraments and witness. To incorporate lay Christians into the priesthood will best realise our belief in the priesthood of all believers, a vision the ACK holds for Christians in divine service:

Lay persons form by far the greater part of the body of Christ. They cannot walk worthily in their high calling, unless they realize that they too are sharers in the heavenly high priesthood of Christ, and that this sharing must find expression in holiness, in witness, and in loving service of others (ACK. Const. 2002 Article VI: #7).

The laity are already leading in liturgy. This change should permit them not only to offer prayers but also grant absolution for the confessant, pronounce blessings on God’s people and last rites for the dying. Also, they should administer sacraments of baptism (this is already applicable in an emergency; full communicants other than a priest may baptise—OMS 2002:43) and Eucharist.

Making all believers priests would more reflect the scriptural ideal of God’s “kingdom of Priests and holy nation” than the present practice. Christians need to realise their calling as in Leviticus (19: 1-2) : “Speak to the entire assembly of Israel and say to them, ‘Be holy because I the Lord your God am holy’”. The New Testament affirms all believers in the priesthood of the New Covenant:

You also, as living stones, are being built up as a spiritual house for a holy priesthood, to offer spiritual sacrifices acceptable to God through Jesus Christ . . . But you are a chosen race, a royal priesthood, a holy nation, a people for God’s own possession, that you may proclaim the excellencies of Him who has called you out of darkness into His marvelous light (1 Pet. 2:5, 9).

The Rabbinic Judaism that emerged out of the devastating tragedy of the loss of the Temple, created a religious and social order that achieved this vision of the people as “a kingdom of Priests and a holy nation”. Their leaders made Priesthood the right and obligation of every Jew. Should we not do the same for Christianity and, more so, for our Anglican Church? With all believers as priests, their lives will turn into God’s service in society. All believers will be more aware of themselves as the community of the Kingdom of God, now scattered in homes, fragments of the divine sanctuary. Yet in these small shards, the believers gather to encounter God upon whom they wholly depend. And as explained by Niringiye, “the visibility of the community is in its gathering . . . in Jesus’ name”. They will engage in God’s service through prayer. And make sacrifices by acts of charity, create sacred fellowship by hospitality with every table becoming an altar for offerings unto God. Hence, the community of believers will exist as a divine sign pointing to the reality beyond, at the same time reflecting the glory of Christ in the present. Christians, now priests, would in the vision of Bishop J.E. Lesslie Newbigin, be the instruments through which God carries His will for justice, peace and freedom in the world, and as a foretaste of the presence of the Kingdom.

We must transform institutional church structures into instruments to equip all believers for service. They should be centres for Christian education where we train our children in our faith, giving them the tools to thrive as Christians in the world. Using our church infrastructures as centres for Christian learning would in effect reorient our priests to actualise their role as teachers and instructors of the faith. Equipping believers, through guiding them in understanding the holy texts and doing theology, will stir the development of fresh liturgy and visibility. Christian theology encourages an engaged spirituality, which lives out its theological convictions in social life. An engaged spirituality seeks to be true to the essence of theology, which St Anselm of Canterbury (11th century) defines as fides quaerens intellectum — faith in search of understanding.

What the ACK should discover, is not the proclaiming a timeless universal truth, but the listening to God’s involvement in the stories of the local community. The Church ought to recognise that it is in opening herself up that she will experience a true radical transformation. A true transformation is a gift of listening to the traces of God’s involvement among us, which brings about liberation and thus creates a space for impossible possibilities. And these are the true transformations.

We can achieve for the Anglican Church what the prophets, the sages, and the Jewish thinkers of the Middle Ages accomplished for Judaism. They realised that sacrifices were symbolic enactments of processes of mind, heart and deed that could be expressed in other ways. The study of the Torah, once the preserve of the priesthood, became the right and obligation of everyone. Sacks concludes, not everyone could wear the crown of Priesthood, but everyone could wear the crown of Torah; Judaism transformed to cope with the new contexts the Jewish people found themselves in.

The ACK is in a liminal space concerning her visibility. A space of being in transition. She must open herself to listen and search for God’s involvement in the world. It is by being in conversation and interpreting God’s involvement that she will be in the transition, from an institution founded on truths and established practices, to an open community, vulnerable, and exposed to the impossible possibilities of Christ’s presence, outside traditional places.

We are yet to understand the impact of this pandemic, it may be worse than we are projecting. Should we just contemplate worst-case scenarios? No, we should plan generations ahead, ask ourselves what we would do, if… What saved the Jewish people, Rabbi Sacks concludes, was their ability never to let go off rational thought, and, refusing to let their loyalty to the past get in the way of the future, they kept planning for the future.

If the ACK, and the Anglican Church, adopt this proposal, any future suspension of physical public gathering would not affect her visibility. Christians would continue to hear God’s word read or preached, and to receive the sacrament in another way.This will then be a Church that has opened herself to the paradigm shift. This article is an abridged version from a journal article published in The Elephant document and archive section.

Published by the good folks at The Elephant.

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Will CJ Koome Obey Pharaoh or Will She Walk the Path To Free Wanjiku?

By Francis Omondi

Our government has decided to extort money from the smallest businesses and is trying to make a virtue of it. Imposing the 3 per cent turnover tax (TOT) on informal micro and small businesses is monstrous, and an insult to poor Kenyans. Though legal, TOT is IMMORAL. I echo the prophetic declaration: “Woe to those who make unjust laws, to those who issue oppressive decrees, to deprive the poor of their right and withhold justice…” (Isaiah 10:1 NIV)

The micro and small-scale businesses, which include kiosks, small grocery stores, hair salons and small market traders (generally those at the bottom tier of the informal sector) now have to pay TOT. TOT is a new tax demanded of any resident person whose turnover from business does not exceed or is not expected to exceed Sh5,000,000 ($50,000) during any year of income. It will be payable from 1st January 2020. This tax rate is on the gross sales/turnover and is a final tax.

Mrs. Elizabeth Meyo, the Commissioner of Domestic Taxes at the Kenya Revenue Authority (KRA), states that “from January 2020, if one operates a salon, butchery, or grocery store, you will be required to declare your sales online and pay the taxes on the 20th of each month.” And for one to get a business licence from one’s county government, one will have to pay an extra 15 per cent of the permit fees to KRA as presumptive tax. In complying to these new demands, Mrs. Meyo further claims, “the business owners will have fulfilled their patriotic duty for a better Kenya”.

Various economic findings acknowledge the substantial contribution of the informal sector to GDP in most developing countries. The informal sector is one of the biggest employers in Kenya, and accounts for over 80 per cent of employment opportunities. It is a shame that attention is turning to this sector only for their moolah, and to bridge the gap resulting from dwindling revenue from the formal sector. According to a Kenya National Bureau of Statistics survey published in 2016, the monthly expenditure on salaries and wages for unlicenced micro small and medium enterprises (MSMEs) was Sh9 billion, which translates to 25 per cent of total outlays a piece.

The neglected informal sector

The colonial market design continues to define the contours of our economy, which conditions us to think of the informal sector as inferior to the formal sector. We still perceive it as “traditional”, marginal or peripheral, having no links to the formal economy and making no contribution to modern industrial development. We have therefore neglected this sector.

Some economists have argued that the informal sector is a dead-end for a pool of labour comprising workers who could not gain entry into the preferred formal sector. Others, like Jeffery Sachs, have even gone to pronounce the informal sector’s obituary, stating that it would cease to exist once Kenya achieves sufficient levels of economic growth and industrialisation.

The informal sector is one of the biggest employers in Kenya, and accounts for over 80 per cent of employment opportunities. It is a shame that attention is turning to this sector only for their moolah, and to bridge the gap resulting from dwindling revenue from the formal sector.

Others see the potential of the informal sector’s small businesses. In his book, The Mystery of Capital (2001), the Peruvian economist Hernando de Soto views these informal businesses as a sign of entrepreneurial dynamism, a real force in the market. They could also be useful in an industrial take-off due to their resilience and ability to withstand market shocks over the long haul, as Shem Watako observed in his doctoral studies of micro and small businesses in Kariobangi.

This hubris in the informal sector has got the taxman’s attention. But the challenge is in how they will implement the TOT. Mrs Meyo identifies this difficulty while responding to why Kenya resorted to TOT for small businesses. She explained that “lack of formal structures and a tax framework that suits the [informal] sector have been major drawbacks in the taxman’s quest to tap revenue from this sector”.

The ethical reasoning of those calling for micro and small-scale businesses to pay taxes as demanded is implausible because it does not raise the second order question. Is it moral to make these demands on the poorest of Kenyan businesses? Is it moral to treat the poor with partiality when the new tax regime would disenfranchise them?

A turnover tax is like a sales tax or a value-added tax (VAT), with the difference being that it taxes intermediate and capital goods. It is on an ad valorem basis (based on the value of the good in question, rather than being flat taxes), applicable to a production process or stage. TOT makes the poor pay another indirect tax, while those whose turnover exceeds Sh5 million pay direct tax, which is a better tax plan for their businesses.

Let us consider a hypothetical case of Nyamulu Beauty Salon, a business run by Achieng’ in Kariobangi, a low-income area of Nairobi, to illustrate this point. With her revenue turnover of Sh100,000 for January 2020, she would enlist for TOT.

NYAMULU BEAUTY SALON, KARIOBANGI TRADER SCENARIO

ITEM REVENUE/COST GOVT TAXES &LEVIES Revenue 100 clients @ 1000 100,000 Less cost Electricity (5,000) VAT +Levies (901) Supplies (oils, hair pieces, etc.) (30,000) VAT @16% (4,800) Rent for stall (12,000) Rent Tax @10% Incl (1,091) Casual workers 2 @500 a day (30,000) Mshwari fees[1] (5,850) County license (1,250) county license (1,250) Operating Trade Profit 15,900 Total Taxes & Levies (8,042)

Assumptions

VAT is standard rated for all goods and services

SCENARIO 1 -TOT Operating trade profit 15,900 Less Turnover Tax (3,000) Total Taxes & Levies (11,042) Net Profit 12,900 11.04%

SCENARIO 2- Personal Income Tax (PIT) Trade Profit 15,900 PIT -After Relief (362) Total Taxes & Levies (8,404) Net Profit 15,538 Effective Tax Rate 8.4%

SCENARIO 3 Personal Income Tax and VAT Registered[2] (PIT + VAT registered) Operating Trade Profit 15,900 Add-Input VAT recovered Electricity 664 Supplies 4,800 Net Profit/Taxable Income 21,364 PIT – After Relief (1,182) Total Taxes & Levies (3,760) Net Profit 20,182 Effective Tax Rate 3.76%

Scenario 3 encourages small traders to register for VAT, which is passed through to consumers; the net effect is increased transparency and increased VAT collection for KRA.

TOT PIT PIT +VAT Reg Profit 12,900 15,538 20,182 Effective Taxes 11,042 8,404 3,760 Effective Taxes% 11.04% 8.4% 3.76%

An alternative tax plan to TOT would give a different result. If the above scenario described her business, then under scenario one, where she paid TOT, her profit would be Sh12,900. Under scenario two, where she pays personal income tax, her profit would be Sh15,538. And if she were registered for VAT and also pays PIT, she would have made profit of Sh20,182.

The individual tax plan would, therefore, be more favourable to the poor income business groups than the TOT. Notice also that her business has contributed indirectly to the government’s revenue by more than Sh8, 042. Then, if subjected to the TOT of Sh3,000, she would have contributed Sh11,042 to the government coffers.

Is it moral for a tax regime to erode the business capital of the poor?

The start-up capital of small businesses usually comes from family resources. This tends to limit the size of the businesses, the number of workers they hire, and the level of profits they generate. So they have a limited amount available to reinvest.

In 2016, the Kenya National Bureau of Statistics found that licenced micro establishments reported spending 45.3 per cent of their net income on investments, either as reinvestment or investing in new businesses and investment in agriculture, while expenditure on household and family needs accounted for 44.5 pervcent. In 2016, small and medium establishments spent a significantly large part of their net income on investment, at 63.4 per cent and 69.7 per cent, respectively.

The erosion of capital from small business via the TOT will delay their growth. Rather, by allowing them to grow capital we would help debunk the notion held by some, including the International Labour Organisation (ILO), that these businesses are doomed to remain small. Yet a significant number of entrepreneurs in the informal sector earn more, on average, than low-skilled workers in the formal sector, according to some studies.

It is immoral to deny the poor a fair chance to compete in the market by imposing a tax on their businesses.

Governments have used taxes to shut out a section of the economy. N. Cheeseman and R. Griffiths (2005)[3] point out that turnover taxes can also be punitive when designed to create a disincentive for buying particular products. They say that environmental regulations sometimes encourage this practice.

Despite the expansive nature of the informal sector, aiming at the bottom end of the pyramid is suspect. We must keep in mind that the current regime is struggling with a debt burden that is uncreative and evil. TOT could be an attempt to cut off informal sector traders from the market. There are 1.3 million micro and small enterprises in Kenya, which, according to a government survey, employed about 2.4 million people – 17 per cent of the total workforce in Kenya – in 2009. They were engaged in the following: close to two-thirds (64.1 per cent) of all enterprises were in the trade sector; retailing made up 62 per cent of all trading in Kenya; manufacturing comprised 13 per cent, while services accounted for 15 per cent.

It is immoral for the government to burden the poor.

In a liberal democracy, argues Prof. Nicholas Wolterstorff of Yale Divinity School, the state should act impartially when distributing burdens and benefits to its citizens. Our government is absent in the lives of poor citizens because of skewed development priorities. The poor live in squalour with children attending overcrowded schools. They have dismal access to healthcare and are the main users of public transport on what is left of roads.

But the government now finds it expedient to tax these businesses operating on the margins of our nation, either in the slums of our cities and towns or in the rural areas. Yet it is through their businesses that low-income households have managed to improve their lot, not through any government subsidies or incentives.

There are 1.3 million micro and small enterprises in Kenya, which, according to a government survey, employed about 2.4 million people – 17 per cent of the total workforce in Kenya – in 2009.

We can use taxes for the public good, to even out the inequalities in society and to provide essential services to all citizens. Eric Nelson, a Harvard professor, explains the idea that the state should coercively maintain an egalitarian distribution of property because it is the business of the state to engage in the redistribution of wealth through taxation, thus ensuring the welfare of the poor; this idea is the genesis of welfare states in many European countries.

Forcing a blanket tax without considering the business conditions of payees is reminiscent of the colonial administration’s hut and poll tax of the 1920s. Then, local leaders and community representatives defended their people against the colonial extortion. Responding to the tax demands, Luo leaders in Nyanza consulted and convened a a general meeting at Lundha in Gem on 23 December 1921. About 9,000 people attended from all parts of Nyanza to discuss the hut tax. During the meeting, Chief Ogada Odera of Gem in Central Nyanza lamented: “As regards our taxes, they used to be 3 shillings. Mr John Ainsworth [the Nyanza Provincial Commissioner in Kisumu from 1906] told us that the amount would be increased to 5 shillings. We agreed. The government then increased it to 8 shillings. It is very heavy. Besides, we do not want our women taxed.”

Forcing a blanket tax without considering the business conditions of payees is reminiscent of the colonial administration’s hut and poll tax of the 1920s.

Chief Ogada made a perceptive comment: “As regards the word colony, the government came here and found us occupying the land and now it calls us ‘wasumbni’ [their slaves].”

Most commentators on TOT have sided with the government’s position and made a virtue of the extortion of poor businesses by calling the tax fair, patriotic, and easy to compute and complete. I think they are misguided. Kamotho Waiganjo reflected this distorted thinking when he commented in the Standard: “But the government was getting no tax benefit from these businesses…those who operate in the formal sector, and who are therefore in the taxman’s spotlight…cough up 30 per cent of annual profits as tax…businesses in the informal sector means that many of the operators in this expansive sector escape the taxman’s dragnet. Not anymore.”

This assumption – that the poor in the informal sector churn out a considerable volume of revenue but do not contribute to the tax pool – is erroneous. TOT is an indirect tax on businesses and not a tax based on income from business profits. Informal sector businesses already pay other indirect taxes that are levied on fuel, electricity, VAT on their goods and rent taxes collected from rental income. Shouldn’t their cost of goods, business expenses, and other costs also be considered, as they are with formal businesses?

Most commentators on TOT have sided with the government’s position and made a virtue of the extortion of poor businesses by calling the tax fair, patriotic, and easy to compute and complete. I think they are misguided.

Some argue that the cost of compliance is low and that all that these small businesses need to do is record their sales. Those paying turnover tax will not need to worry about tracking their expenses; their tax is only on turnover. They say keeping proper business records will benefits business owners because proper records would help them evaluate their business performance, monitor purchases and sales, and make crucial business decisions.

However, the consequences of eviscerating small businesses would be catastrophic owing to sector’s significance in the economy. It may arouse two major reactions from the poor:

First, if the small businesses sense extortion, they may disappear into thin air. These businesses are supersensitive to extortion by the authorities and would hibernate, adjusting their operations till conditions change. The damage in the wake of their disappearance could be devastating. Mr. Francis Atwoli, the Secretary-General of the Central Organisation of Trade Unions (COTU), warned that further taxation on small and medium businesses will not only destroy the fastest growing sector of the economy but also render many Kenyans jobless.

The 2016 Kenya National Bureau of Statistics survey shows that approximately 400,000 micro, small and medium enterprises do not celebrate their second birthday. Few reach their fifth birthday, leading to concerns about the sustainability of this vital sector.

Second, if poor business owners interpret this tax as oppression, they will revolt. Implementation of TOT will conjure up the pain of the colonial era. The colonial hut and poll taxes became a heavy burden on the people of Kenya in the 1920s. B A Ogot[4] (2009:772) observes that it was made worse by the method of collection, which was ruthless and arbitrary. In Nyanza, the colonial regime collected the hut tax from all huts in a kraal, including the cattle sheds. When many people refused to pay these taxes, the colonial authorities, including chiefs and tax clerks, resorted to brutal methods of collection, ordering policemen, chiefs and sub-chiefs to raid villages, set houses on fire, and confiscate property or food stuff such as grains, bananas and cassava.

Since TOT will eat into the livelihood of these business owners, they will revolt. But the authorities will crush their revolt due to their lack the organisational capacity, unlike the UK’s anti-poll tax groups of 1990. Introducing an unpopular “poll tax” is credited for forcing Mrs. Margaret Thatcher out of office in November 1990. The Green Paper of 1986, Paying for Local Government, proposed the poll tax, which charged a fixed tax per adult resident for the services provided in their community, hence the term poll tax. It was a change from payment based on the worth of one’s house to a resident individual. The tax was, therefore, criticised as being unfair, and needlessly burdensome on those who were less well-off. What followed were protests and riots that prompted the abolishing of the tax following the change of government in November 1990.

What should KRA do with poorer businesses?

The government and the KRA, the implementing tax collection authority, can act morally and avoid hurting small-scale businesses. They can make it a priority to rationalise the informal sector rather than wipe it out through harsh tax policies.

Turnover tax, as currently enacted, is elective. Therefore, qualifying small businesses can opt to register for the standard tax system. This move would allow them to be recognised like other businesses. And with sound records, they may take advantage of comprehensive inclusion rules and a reduction process that requires maintaining proof of expenditure. We should make efforts in aiding small-scale businesses to maintain proper business records and wean them into an alternative tax regime.

The government and the KRA, the implementing tax collection authority, can act morally and avoid hurting small-scale businesses. They can make it a priority to rationalise the informal sector rather than wipe it out through harsh tax policies.

This government should heed the words of Hubert Humphrey, the former US Vice President, who on November 1, 1977, said: “The moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; those who are in the shadows of life, the sick, the needy and the handicapped.”

The tinders are there waiting for something to ignite them. If the poor interpret TOT as extortion, we may as well have ushered in days of revolt.

[1] Trader uses Mshwari for working capital, interests at 7.5% per month.

[2] Allow Voluntary registration for traders who are below the threshold for compulsory VAT registration.

[3] Cheeseman, N., & Griffiths, R. (2005). Increasing Tax Revenue in Sub-Saharan Africa: The Case of Kenya. Oxford Council on Good Governance, Economy Analysis, 6.

[4] Ogot BA. 2009: A History of the Luo speaking people of Eastern Africa. Kisumu Kenya Anyange press ltd.

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Follow us on Twitter. Will CJ Koome Obey Pharaoh or Will She Walk the Path To Free Wanjiku?

By Francis Omondi

“To the man who only has a hammer, everything he encounters begins to look like a nail.” – Abraham Maslow.

The fervour for constitutional change among a section of the political class and national leadership has gained momentum. A cursory view of Kenya’s history indicates a propensity to revert to legal solutions for Kenya’s political problems or moral dilemmas. Our history demonstrates that tinkering with the constitution to accommodate the challenges facing the political class has rarely borne any fruit.

Seldom have we delved into successes political solutions afford us. The “handshake” of 9 March 2018 between Raila Odinga and Uhuru Kenyatta, they say, swerved Kenya away from the edge of the precipice of chaos. It took intriguing political turns and twists to cut the deal. Inclusivity! The courageous turns by President Kenyatta and Hon. Odinga, and the twisted, and cryptic yet surprising pact, somersaulted their lost and bewildered supporters into alignment in the new arrangement. So, Kenya is at peace today, after the grueling duel of the 2017 election, through a political solution. But there are whispers among politicians that Kenyatta and Raila are threading the needle to solidify the handshake by anchoring it in the constitution and inevitably forcing a referendum on Kenyans. They should have stayed on this path and should never have capitulated. What a window of opportunity, not only to engrave an alternative approach to resolving our political complications, but also to transform and sanitise our politics.

The obtuseness with which this referendum is being mooted raises questions. In the early 1990s, we knew the reasons for holding a referendum. Though a referendum was not held then, public opinion and donor pressure forced President Daniel arap Moi to repeal Section 2A of the constitution (the section that made Kenya a one-party state). This precipitated the multiparty political dispensation that led to the proliferation of political parties and the eventual ouster of Moi’s Kanu party in 2002.

But there are whispers among politicians that Kenyatta and Raila are threading the needle to solidify the handshake by anchoring it in the constitution and inevitably forcing a referendum on Kenyans.

Similarly, the 2010 referendum on the new constitution was clear: Yes for change, No for the status quo. The push was to overhaul the old constitution to reflect our new realities. The changes sought included bringing voices on the margins to the centre and to institute a dramatic shift in how to share power and resources. Genuine inclusivity. For this, we found the formula in a devolved structure of government. The new constitution guaranteed a Bill of Rights that guaranteed freedom of expression, among other fundamental rights. Hence the Constitution of Kenya 2010 was promulgated.

NCCK’s proposals to amend the constitution

We live in an enchanted country under a spell of the referendum for a change in the law. The National Council of Churches of Kenya (NCCK) made a proposal mainly seeking to change the executive, which appears to voice certain politicians’ whispers. The NCCK is seizing the moment to inject into the constitution some issues they could not include during the last referendum.

During the NCCK Executive Committee meeting on 27th February 2019, participants reached the conclusion to propose a wide range of changes to the 2010 Constitution. They suggested amending Article 130 of the 2010 Constitution by inserting the words “Prime Minister” and “two Deputy Prime Ministers” immediately after the words “Deputy President”.

They also recommended inserting a new clause (3) to read: “130 (3) The President, Deputy President, Prime Ministers, and Deputy Prime Ministers, shall all be from different ethnic groups.” They recommended giving both the Prime Minister and Deputy Prime Ministers executive authority.

During the NCCK Executive Committee meeting on 27th February 2019, participants reached the conclusion to propose a wide range of changes to the 2010 Constitution. They suggested amending Article 130 of the 2010 Constitution by inserting the words “Prime Minister” and “two Deputy Prime Ministers” immediately after the words “Deputy President”.

NCCK also recommended amending Article 131 (1) (b) by inserting the words “Prime Minister and Deputy Prime Ministers” immediately after the words “Deputy President”. They reasoned that introducing the Prime Minister and Deputy Prime Ministers as members of the National Executive will enshrine greater inclusivity in the government’s structure. The Prime Minister, Deputy Prime Ministers, and Cabinet Secretaries are to be accountable to both the President and Parliament through the amendment of Article 153 by: a. Inserting in Clause (2) the words “Prime Minister, Deputy Prime Ministers” immediately before the words “Cabinet Secretaries” and b. Inserting in Clause (2) the words “and Parliament” immediately after the word “President”.

Reforming the executive structure is evidently the thrust of the NCCK’s recommendations. I have since found out that the NCCK conducted several seminars at the grassroots to garner support for the referendum. But in many places, the membership refused to drink this “Cool Aid”. They rejected these recommendations.

Ambassador Francis Muthaura, the former Head of Public Service, while making a submission during a Building Bridges Initiative (BBI) event on 10 July 2019, suggested bold changes to the 2010 Constitution. Amb. Muthaura rooted for a power-sharing government of the two protagonists, with Cabinet positions shared equally once in power, an arrangement reminiscent of President Mwai Kibaki’s and the then opposition leader Raila Odinga’s Grand Coalition Government of 2008. He proposed that both the winner and the runner-up candidates in the presidential election share in a coalition government as the President and the Prime Minister, respectively.

“Once the results of the presidential elections are announced by the electoral commission, the candidates having the highest number of votes and the second-highest number of votes will form a government of national coalition,” he said.

He further suggested that in Parliament, the president’s party should provide the leader of government business, while the prime minister’s party should provide the deputy leader of government business, which will make the government more consultative rather than the confrontational.

Enter Punguza Mzigo

The Third Way Alliance of Dr. Ekuro Aukot caught many by surprise when it got the Independent Electoral and Boundary Commission (IEBC)’s nod for a referendum. With over 1 million signatures, they had the people’s mandate for their reform bill, dubbed “Punguza Mzigo” Bill 2019.

At the core of the bill is relieving the public financial burden by trimming the government’s runaway expenditure. The proposed amendments aim to deal a fatal blow to corruption and theft of public funds, to redistribute national resources to the ward levels – which is a shift from the constituency level, as we know it today – and to rearrange presidential terms to only one, but for seven years. True to its name, the Punguza Mzigo bill plans on drastic austerity measures in both the government and in the legislature, which its proponents argue will spur economic growth, and percolate prosperity to ordinary Kenyans. David Ndii, a leading economist in Kenya, submits that it won’t boost economic growth as many argue.

It is disingenuous of Dr. Aukot, one of the Committee of Experts who birthed the 2010 Constitution, to now propose to overhaul it without a clear audit of what Kenyans gained or lost after its promulgation. For instance, reducing the number of legislators undermines the key gains of the 2010 Constitution on the principle of representation. The rationale for the present arrangement outweighs the populist reasons of cost-saving of taxpayers’ funds. This is sheer populism that won’t remedy the appalling state of the masses. Why change the law, when these changes are achievable through fiscal discipline and robust economic policies?

I am sceptical about whether changing laws to expand the government for inclusivity, either as advocated by the NCCK or Amb. Muthaura, reaches the depth of the issue. These proposals risk engraving tribal politics in our laws, which breed exclusion. What the NCCK suggests will distribute executive positions based on one’s tribe, while Muthaura’s winner and runner-up sharing positions may tie the positions to the same political groupings.

It is disingenuous of Dr. Aukot, one of the Committee of Experts who birthed the 2010 Constitution, to now propose to overhaul it without a clear audit of what Kenyans gained or lost after its promulgation.

Given how party politics in Kenya are tribally bent, these proposals may lead to an eternal exclusion of some communities. If we allow the changes as suggested, we would give birth to a bastard democratic order, with a government without the checks and balances that a credible opposition can offer. Doubtlessly, the changes will re-concentrate political power around a certain group in power and this will eventually bury the 2010 Constitution.

We may assume that the malaise is because of the defects in our institutions. Yet the problem lies elsewhere. A sound constitution would need a corresponding sound “structure”. For instance, the Constitution of the Soviet Union also granted a Bills of Rights, but that did not prevent the centralisation of power in one person or in one party. And as soon as that happened, the constitution was dead. The party or the chief became supreme. Even banana republics have sound constitutions protecting rights and promoting inclusivity, but most of them end up being mere words on paper.

If we allow the changes as suggested, we would give birth to a bastard democratic order, with a government without the checks and balances that a credible opposition can offer. Doubtlessly, the changes will re-concentrate political power around a certain group in power and this will eventually bury the 2010 Constitution.

Inclusivity cannot be achieved through a referendum

Addressing the US Senate Judiciary Committee, the late Justice Antonin Scalia refuted that American “exceptionalism” was embedded in the US constitution, as many assumed. On the contrary, he argued, it was in the structure of its government, the independence of its judiciary and the bicameral legislature.

In this system, Scalia explained, “legislation passes one house [and] it doesn’t pass the other house; sometimes the other house is in the control of a different party; it passes both, and then this President, who has veto power, vetoes it. And they look at this and they say, ‘Ah, it is gridlock’.” This disagreement, he observed, is the key that provides the check and balances, and this is what makes American constitutionalism exceptional.

The “inclusivity” that supposedly came about as a result of the “handshake” between Raila Odinga and Uhuru Kenyatta or which is being proposed by the NCCK and Muthaura pays little attention to this kind of accountability. Rather, it blurs this vital element of democratic government. (To their credit, the drafters of the Punguza Mzigo Bill 2019 recognised the need to improve the checks-and- balances role of the legislature. They propose reforming the legislature to increase the power of the Senate as the Upper House and so improve the role of Parliament as a government watchdog and people’s representative.)

It is a cruel irony that we are now using a referendum to achieve inclusivity. A referendum, by its nature, is divisive. Every referendum we have held left us divided: In 2005, it was “Banana” or “Orange” groups. In 2010, it split us between the “Yes” and “No” camps. We have observed a referendum sorely dividing the United Kingdom, between “Brexiters” and “Remainers”.

A referendum implicitly denounces those who are on the opposite side as enemies, and this extremism can lead to violence. A referendum does not allow us to walk the sensible middle of the road, or achieve compromise needed over complex social challenges, because it simplifies complex issues into sound bites. Referendums hinder a thorough and factual debate over issues. Our leaders claim to want referendums for the purpose of gauging public opinion, while in reality, what they really want is to make the public to parrot their untested ideas.

It is a cruel irony that we are now using a referendum to achieve inclusivity. A referendum, by its nature, is divisive.

Referendums generally tend to inhibit us from carrying out an independent evaluation of issues. They are likely to deny us opportunities to listen to experts who would give a general assessment of national interest and enable us to balance multiple perspectives. Further, a referendum will obstruct compromise, especially because it will produce a result in which a majority, by any margin of votes, feels entitled to speak for the whole nation and to stifle the voice of the minority.

Fixing our politics

So, investing more in politics than the law remains our most viable option. During the BBC’s 2019 Reith Lectures, In Praise of Politics, (the retired Justice of the UK’s Supreme Court, Lord Jonathan Sumption, criticised the law’s expanding of the empire into our lives. He observed the law’s corroding influence on democracy, and argued that politics, not the law, holds the solutions for the crises in society. He warned, “Every human problem or moral dilemma can’t call for legal solutions.”

Justice Sumption makes the case for strengthening the political process through representation, which is the role of Parliament, for it is difficult for all citizens to vote over and decide over a matter. The masses often have insufficient data and information to reach an informed decision.

Besides, as Sir David Hume, a prominent figure of the 18th century’s Scottish Enlightenment observed, there is an incurable narrowness of soul that makes people prefer the immediate to the remote and to safeguard parochial rather than national interests. Sumption, therefore, supports taking this process away from the electors who have no reason to consider but a desire for the immediate and narrow opinion of their own. He insists that political decision-making should stay in the hands of politicians because they can accommodate the widest array of opinions and act in the national interest.

It’s a tragedy that our lawmakers are strangers to this principle of representation. At best, they only listen to the concerns of the constituents but do not promote among their constituents a broader view of public interest.

James Madison, in The Federalist Papers, made the strongest justification for representative politics, which he argued, is to “refine and enlarge the public views, bypassing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice, will be least likely to sacrifice it to temporary or partial considerations.”

Regrettably, our legislature operates as a creation of the executive, and/or their political party heads. Nothing goes without them saying so. Sir Edmund Burke, an Anglo-Irish politician, political theorist, and philosopher who served as a member of parliament reminds us, “Parliament was not a congress of ambassadors but its members were there to represent the national interest than the opinions of the constituents.”

We will remain torn apart by the submitted adjustments unless these motions undergo a process of refinement and enlargement through the broad workings of the legislative process. Here, such ideas are transformed from private persuasions at public hearings or at a local level, to the deliberative proceedings in Parliament. And from the contests and accommodation of interests in legislative committees to the representatives’ open declarations to their constituents.

The representation principle was intended to prevent such narrow interests and unjust views from determining public decisions. Thus the job of the representative is not to follow daily polls or sudden breezes in popular opinion, which Madison thought were too often the result of prejudice and partial interests. Rather, the representative should promote a consensus grounded in justice and the common good.

The Kenyan ordinary political process is murky and treacherous, devoid of true representatives. Can we fix this? We must demand deliberation within the legislature of the proposals by NCCK, Muthaura, Punguza Mzigo Bill 2019 and any others that will be put forward, and seek a two-way process of communication between the representatives and their constituents. Within this milieu of public communication and deliberation, perhaps a kind of civic education will take place. Maybe this then will contribute to forming and settling public opinion based on what is right, and therefore, will justify “the respect due from the government to the sentiments of the people.”

I opine that this madness to tinker with the code may become our “march of folly”. Mrs. Barbara W. Tuchman, in The March of Folly: From Troy to Vietnam, gives a stark warning on decisions leaders make without referring to the facts and which end up harming ordinary people. In some of her conclusions, she asserts that folly is sometimes caused by people’s ‘’wooden-headedness’’ or ignoring their earlier history. Just folly.

This is not a situation where leaders make an error in judgment due to ignorance; it is a situation where decisions are made out of foolishness. Mrs. Tuchman sets out three conditions for such decision-making. First, the leaders and those responsible were warned about the potential for a disaster. Second, there were workable alternatives to the course they took. Third, it was groups, not individuals, who perpetrated the foolishness.

Mrs. Tuchman supported her assertions with four major acts of folly in human history. These are: 1) the Trojans’ decision to move the Greek horse within the walls of their city; 2) the refusal of six Renaissance popes to arrest the growing corruption in their church and their failure to recognise the increasing restiveness that would lead to the Protestant secession; 3) the British misrule under King George III that eventually cost England her American colonies; and 4) America’s mishandling of the conflict in Vietnam.

We must halt urgently this referendum march. For there is nothing new about our present crisis and the suggested constitutional reforms are usually irrelevant to the problem that provoked them. The peril Kenya faces lies not in our laws or institutions, but in the decline of our character as a community. Without a powerful sense of community, even the best laws and institutions will remain a dead letter. The facade will stand, but there will be nothing behind it. The rhetoric will be loud, but it will be meaningless.

And the fault will be ours. Published by the good folks at The Elephant.

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Will CJ Koome Obey Pharaoh or Will She Walk the Path To Free Wanjiku?

By Francis Omondi

I once saw a UNICEF poster of a child who, when asked what it wanted to be when it grew up, replied “ALIVE!” Life is a basic right that must never be forgotten by activists, including religious leaders. Anything that diminishes or degrades life is an injustice. The purpose of all social economic and political activities of government at all levels is to enhance and protect life. I hold the ancient Greek position that the government has only one purpose: to improve the lives of citizens. The travesty is this – our government through its policies is methodically undermining the foundation upon which such should be achieved. Economic hard times are now upon us. Blogger Ephraim Njenga had shown that a widespread collapse of the economy is unlikely. Instead, he predicted that it would be a slow and painful death.

The Psalmist (Psalm 11:3) raises a question Kenyans should ask, given our circumstances: “If the foundations are destroyed, what can the righteous do?” “Foundations”, here, refers to those things on which society rests, or by which it sustains social order. Things are in a topsy-turvy state here. Much is out of order and off-course, both in Church and State. People despise and disregard laws, which make the foundations of government. They pervert judgment, and justice stands afar off. The doctrines and principles of religion are subverted, so that there is no standing, either in a political or religious sense. Amazingly the political class is setting standards for the religious, and the religious are failing to push the government to protect the lives of Kenyans.

In the conduct of business in today’s Kenya, we must question whether our present national economic policies promote or harm the wellbeing of a majority of Kenyans. The global monetary crisis of 2008 was caused by defying the principles of not spending what you don’t have and not living beyond one’s means. On such principles are sound economies built, yet they are once again being deliberately violated. Our leaders delude themselves that they can violate the rules, and that can build up their own storehouses while exploiting citizens. That appears to be their governing philosophy.

Amazingly the political class is setting standards for the religious, and the religious are failing to push the government to protect the lives of Kenyans.

Our government has demonstrated a reckless extravagance in the administration of the nation’s resources. Former mayor of Kansas City, Mr. Mark Funkhouser, states that the government in a democracy is essentially a conservative institution. It creates and sustains markets, enforces contracts, protects private property, and produces systems of education and infrastructure that allows commerce to function efficiently.

In its wisdom or lack thereof, the Jubilee administration has presided over a massive debt, ballooning annual public spending from KShs 1.2 trillion to over Sh2.5 trillion in six years. This growth in spending rates outstrips the Gross Domestic Product (GDP) growth rate. On the other hand, debt obligations shot up this year as semi-concessional and commercial loans contracted over the last five years came due. As it was reported in the Business Daily, “Treasury spent Sh57 out of every Sh100 it collected in July and August to service debt.” Debt repayments consumed Sh118.08 billion in the first two months of this fiscal year, more than three times the amount recorded in the same period last year and more than half of total tax collections. Last year, it was less than a fifth. Despite the Kenya Revenue Authority increasing the taxes it collected, funds available for expenditure were far less.

The repayments, which are now a priority, are exerting pressure on the exchequer, and eating into other expenditure, including disbursements to counties. Treasury CS Henry Rotich, in the Statement of Actual Revenues and Net Exchequer Issues as at end of August, admitted that only 15 of the 47 counties had received cash from the Exchequer in the first two months of this financial year. But, in the period, the government spent a whooping Sh133.23 billion on loan repayments, making that the second single largest spend after such recurrent expenditures as salaries, allowances and administrative expenses.

Debt repayments consumed Sh118.08 billion in the first two months of this fiscal year, more than three times the amount recorded in the same period last year and more than half of total tax collections.

Kenyans are buckling under the pressure. Essential services are now neglected. Imposition of Value Added Tax (VAT) on fuel in September, ostensibly to cover the hole in the budget, has had a disastrous effect on Kenyans. The Kenya Association of Manufacturers warned that retailers would be hard hit, with the heaviest burden borne by the poorest demographic. It is now real and will ensnare us for a long time.

Consider how this greed has played in the present maize crisis. Our food security policies reveal a deliberate determination to destroy foundations on which the lives of Kenyans depend. Food security is synonymous with maize supply. Therefore, current and past food policymakers attached great importance to the commodity, which is not only the main staple food but also the most common crop grown by poor, rural households for food.

The government set agents like the National Cereals and Produce Board (NCPB) to address the twin challenges facing the sector. The first challenge is food prices. Policymakers face the dilemma of how to keep farm prices high enough to motivate farmers to keep at production while keeping the maize meal prices low enough for consumers. The second is the production stability, which also involves dealing with food prices, a major hindrance to smallholder productivity growth and food security.

This government hides behind liberalization of maize markets to allow maize cartels to import maize at the expense of ordinary Kenyan farmers. Ariga and Jayne in their survey – Maize Trade and Marketing Policy Interventions of 2007 – noted how prior to the market liberalization of the late 1980s, the NCPB received enough public funds to purchase between five and eight million bags of maize per annum. The purchase constituted more than a half of the domestically traded maize output. The NCPB set its maize purchase prices higher than prevailing market prices in the maize breadbasket areas of Western Kenya. Consequently, the incomes and living standards of many farmers improved, including large-scale farmers, who depended on the NCPB’s continuing to offer support prices for maize. Ariga and Jayne infer that by offering above-market support prices, the NCPB used its market power and access to the Treasury to block private sector investment in maize wholesaling and storage.

The failure of the current government to support the role of the NCPB in favor of the private sector (cartels) is what has plunged the sector into the present crisis. This policy shift has handed the market to private traders. A Tegemeo Institute /Egerton University survey recently revealed how most small farmers in Kenya now sell their maize to private traders who then sell it to the NCPB. The survey shows that the first-order effects of NCPB price-raising operations over the past decade have been to transfer income from (poorer) maize purchasing rural households and urban consumers to larger maize-selling farms.

Elliot Mghenyi, a senior economist at the World Bank, in Food Pricing Policy, Rural Poverty and the Distribution of Income: Insights from Maize in Kenya, a paper presented at the International Agricultural Economics Tri-Annual Meetings in Australia, found that a 20 percent reduction in maize market prices would reduce rural headcount poverty rates and transfer income from a small proportion of maize surplus farmers to most farmers in rural Kenya. Mghenyi’s analysis considers these second-order effects by considering both adjustments in production and consumption, and the accompanying responses on the rural wage labor market. The survey shows that the first-order effects of NCPB price-raising operations over the past decade have been to transfer income from (poorer) maize purchasing rural households and urban consumers to larger maize-selling farms.

This government shamelessly robs from its poor citizens to reward the large farmers and maize cartels. Basic questions about political ideologies come down to how we ask, and answer, questions about the production and the distribution of national wealth. Which is why economic judgments are crucial. The greatest potential for pro-poor income growth is likely to involve maize productivity growth.

These foundations are being destroyed not for lack of keen policymakers, but as Gitau Githongo, a Nairobi-based economics commentator, observed, senior public officials are motivated more by personal interests than by public service and even outright nepotism and tribalism, spurious contracting in implementing policy initiatives in the key sectors of health, agriculture, and infrastructure. It is disheartening that public officials are exploiting for personal gain the opportunities provided by an unjust system and not working on principles anymore.

What can the righteous do? What should they do to promote justice? This form of corruption is a curse on any country; it is a plague on the poor, an enemy of justice, and anathema to all religious beliefs. Is it the responsibility of non-State actors to force such a miracle – or hold responsible those supporting evil deeds? No. It has to be fought. The first responsibility rests with the nationals of the country concerned. If the lukewarm response by parliamentarians or the silence of the Church is something to go by, then ordinary Kenyans are in for a really hard time. Too many politicians have forgotten that government’s only purpose is to improve citizens’ lives. They believe it’s there to improve their lives.

While addressing us senior church leaders at the Lutheran International Conference on Ethics and Economy in September 1993, Mwalimu Julius K. Nyerere cautioned that we cannot have “a just Africa” if we limit ourselves to one of these rights – civic, social or economic rights alone. In any social unit, they are all interlinked, and the only priority should be to be active on all rights. He emphasized: “Each of us has the responsibility to use his or her own judgment on how we can contribute maximally to building a better world for mankind to live and work in.”

If the lukewarm response by parliamentarians or the silence of the Church is something to go by, then ordinary Kenyans are in for a really hard time. Too many politicians have forgotten that government’s only purpose is to improve citizens’ lives. They believe it’s there to improve their lives.

This is not the time for the righteous or the just to be silent! The German Evangelical Church made a public declaration of guilt in April 1950, for it did not address the Nazi regime’s atrocious policies. It stated: “We confess that we have become guilty before the God of compassion by our omission and silence and thus share the blame for the terrible crimes committed against the Jews by members of our nation”. If the German Church judged its complicity as sin against God, it follows that the Kenyan Church that is so cozy with architects of these unjust policies is a sinner of the same degree.

The Church in Kenya will do well to heed Rev. Dietrich Bonhoeffer’s directions, who in his seminal work No Rusty Swords, instructed: “There are three possible ways in which the Church can act towards the State. In the first place, as has been said, it can ask the State whether its actions are legitimate and under its character as State, i.e. it can throw the State back on its responsibilities. Second, it can aid the victims of State action. The Church has an unconditional obligation to the victims of any ordering in society, even if they do not belong to the Christian community. ‘Do good to all men.’ In both these courses of action, the Church serves the free State in its freeway, and when laws are changed the Church may in no way withdraw from these two tasks. The third possibility is not just to bandage the victims under the wheel, but also to put a spoke in the wheel itself. Such action would be direct political action and is only desirable when the Church sees the State fail in its function of creating law and order.”

In 1946, United States’ president Harry Truman sent General George C. Marshall to China to broker peace between the warring factions of Communists and nationalists. While he failed, what he said upon his return is worth our attention: “We are in the middle of a world revolution and I don’t mean Communism. The revolution I am talking about is that of ‘the little poor people’ all over the world. They are beginning to learn that there is life and to learn what they are missing.” Not long after he spoke these words, colonial empires were dismantled first in Asia, then in Africa and Latin America.

The poor will also want to have food, clothing, shelter, and other necessities of life. They will demand to live without fear, and aspire to work for their own living. For them, freedom will be imperative, at least to reject decisions affecting their lives but made without their participation. There is an undeniable correlation between economics and peace. Over the past few days, French citizens wearing yellow vests have been out on the streets of Paris, fighting against unfair government policies, particularly high fuel prices! In India, farmers are mounting a protest in New Delhi because of poor farm prices.

For men to plunge headlong into an undertaking of vast change, they must be intensely discontented, yet not destitute. They must have the feeling that comes by the possession of some potent doctrine and have access to a source of irresistible power. They must also have an extravagant hope, a conception of the prospects and potentialities of the future. These men and women will defy all odds and be ignorant of the difficulties involved in their vast undertaking. Hope springs eternal for such people across Kenya.

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By Francis Omondi

In his famous song Ayee Africa ee Africa oo Lipanda? (Ah Africa where is your independence?), the young Congolese musician Franklin Boukaka questioned the essence of independence from oppressive colonial rule. Why would the new African leaders indulge in luxuries and power while the masses they led were confined to squalor in his native Congo Brazzaville?

This, of all of Boukaka’s songs, was most popular on radio in the 1970s and remains to date. I doubt that the Voice of Kenya (VoK) radio presenters knew that they were playing a song outlawed in the country of its origin. A nimbus of sweetness in the music concealed the song’s subversive message. The emphatic climax of the song posed three questions: “I thought the colonisers left? Who then became independent? Ayee Africa where is your independence?”

The singer rebukes the insensitivity of the leaders to the needs of their citizens. One of the most beautiful African voices was, however, extinguished forever. His song earned him silence on February 22, 1972. Boukaka was executed on the orders of Joachim Opango in the crisis following a coup d’état that failed to topple Marien Ngouabi. However, his voice will continue to haunt our present context in Kenya and Africa as long as the benefits of our freedom are not realised.

Time has revealed the yawning gulf between the independence aspirations our forbearers struggled for and the realities we have experienced. The promissory note of freedom and prosperity has been unhonoured. The majority of Kenyans could not cash it. To paraphrase American civil rights icon Rev. Dr. Martin Luther King Jnr., it has been returned marked “insufficient funds”. What was the point of the sacrifice for self-rule if wananchi (ordinary Kenyans) would be subjugated to oppressive poverty? Whose independence was this?

Time has revealed the yawning gulf between the independence aspirations our forbearers struggled for and the realities we have experienced. The promissory note of freedom and prosperity has been unhonoured. The majority of Kenyans could not cash it.

The African leaders of the colonial days were clear about what they demanded. Freedom. While attending the American Committee of Africa’s Freedom Day in 1959, Hon. Tom Mboya, the then Secretary General of the Kenya African National Union (KANU) – who had just been elected head of the Pan-African people’s Congress in Accra, Ghana – gave a revealing interview to American journalists in a session with the National Broadcasting Corporation’s The Press. He was articulate, expressing an urgent need for independence. Mboya understood freedom to be achieving the right to self-determination and to have a government elected by the people, not imposed on them and, therefore, one that was responsible for and accountable to the people. That was the reason for the struggle for independence all over Africa.

The colonialist perceived Africans to be too tribal to rule themselves without resorting to chaos. Perhaps this is why the host, during the interview, pejoratively reminded Hon. Mboya that with freedom there goes responsibility for self-government. She expressed her apprehension about the ability and readiness of Africans to self-govern with these questions: “Now, how can you say that people are prepared for such a responsibility when illiteracy is 90 per cent in many parts of Africa? When governmental experience personally for many is tribal and there is major dependence for foreign aid for economic development…?”

Hon. Mboya concurred with her when he recognised the need for literacy and development in form of better roads and schools. He pointed out that “… the motive behind our struggle for independence is our recognition that these things are not possible under colonialism.” He refuted her characterisation of Africans, identifying it as a colonial fallacy.

The vision of achieving independence to advance ordinary African people described development in terms of people’s welfare, not economic indicators, such as Gross Domestic Product and Gross National Product or economic growth. It concurred with latter-day economists like Edgar Owens (1987) who suggests that development occurs when there is development of people (human development) and not development of things. According to the World Development Report (WDR 1991), “The challenge of development, is to improve the quality of life, better education, higher standards of health and nutrition, less poverty, a cleaner environment, more equality of opportunity, greater individual freedom, and a richer cultural life.”

It is this nexus between development and independence that Hon. Mboya had in mind when he said: “It is when people have attained independence that programmes such as more education, more hospitals, better roads, better houses can be implemented by a government concerned for its people.”

The Cuban example

The Cuba experience backs Hon. Mboya’s assertion, although he spoke before the Cuban revolution had taken place. The 1959 Cuban revolution that brought Fidel Castro to leadership transformed the tiny Caribbean Island of seven million people. Castro created a socialist programme that focused on transforming the lives of ordinary Cubans. Consequently, they were provided a completely free education system uniquely adapted to Cuban needs, from nursery to university. Douglas Kellner’s, in Ernesto ‘Che” Guevara World Leaders Past and Present, explains how prior to 1959, the official literacy rate for Cuba was between 60 per cent and 76 per cent. This was occasioned by both lack of education access in rural areas and a shortage of instructors. The Cuban government under Fidel Castro, beginning in 1961, focused on the countryside by constructing schools and training new teachers who taught the predominantly illiterate peasants (guajiros). At the end of the campaign, the national literacy rate rose to 96 per cent. By 2009, according to a 2012 Central Intelligence Agency report, literacy levels across the population of Cuba were 99.83 per cent. This became the foundation of the development of the Cuban people. Again, it was the citizens who volunteered to achieve this.

According to the World Health Organization (WHO), Cuba’s healthcare system is an example for all countries of the world. It is recognised for its excellence and efficiency. Those responsible for its success include family physicians, nurses and other health workers who labour to deliver primary healthcare and preventive services to their cluster of patients. It is a very localised system; the patients and their caregivers live in the same community. There are now about 2,500 patients per physician-headed office at the primary care level. Their healthcare is premised on the preventive health system, which has produced positive results. As a result, Cuba’s vaccination rates are among the highest in the world. The country’s life expectancy of 77 years is exceedingly impressive for a developing country. The infant mortality rate in Cuba has fallen from more than 80 per 1,000 live births in the 1950s to less than 5 per 1,000. The improved health outcomes are also be attributed to improvements in nutrition and education, which are key variables that address the social determinants of health. Today, health education is part of the mandatory school curriculum.

Despite its extremely limited resources and the negative impact of the American blockade and economic sanctions for more than half a century, Cuba has managed to guarantee access to healthcare for all segments of the population, which has enabled the country to obtain results similar to those of the most developed nations.

Cuba’s experience mocks our post-independence achievements. Our literacy levels are most disturbing. The key findings of Kenya’s national adult literacy survey in 2007 indicated that, on average, 38.5 per cent of the Kenyan adult population is illiterate, implying that more than one in three adults cannot read or write. This is despite the fact that they have been major increases in enrolment in educational institutions at all levels, and a plethora of education commissions constituted to rectify the education conundrum Kenya has faced since independence. Shockingly, this was almost where Cuba was in 1959.

Despite its extremely limited resources and the negative impact of the American blockade and economic sanctions for more than half a century, Cuba has managed to guarantee access to healthcare for all segments of the population, which has enabled the country to obtain results similar to those of the most developed nations.

President Uhuru Kenyatta’s decision to invite 100 Cuban doctors to serve Kenyans, therefore, speaks to us with a forked tongue. We are grateful that these specialists are contributing to ease the pressing healthcare needs in our hospitals. However, it should concern us gravely that the government refuses to undertake the arduous task of developing Kenya’s healthcare system to Cuban levels. Why import Cuban doctors when adopting their system is within our reach?

The celebrated Universal Healthcare proposal in the Jubilee government’s Big 4 Agenda misses the point of our healthcare needs. It assumes a solution by availing financial resources. It, therefore, proposes to reduce the cost and ensure universal access to quality and affordable healthcare by 2022. The government plans to ensure that every Kenyan is covered under the National Hospital Insurance Fund (NHIF) medical insurance cover. This plan will require: a strong collaboration between the NHIF and private sector insurance providers; reviewing the rules governing private insurers; lowering the cost of coverage; protecting both the government and Kenyans from fraud and abuse; and letting private insurers to invest more in providing medical coverage.

This solution is set up to profit the insurers and other supplies of medical products rather than ordinary Kenyans. We stumble not for lack of examples to emulate, but for refusal to care. WHO notes that lack of access to healthcare in most parts of the world springs not from lack of resources, but from a lack of political will on the part of leaders to protect their most vulnerable populations.

With limited resources, the Cuban health care system has solved problems that ours has yet to address. Even though their healthcare system addresses those problems in ways that grew out of Cuba’s peculiar political and economic history, the system they have created — with a physician for everyone, an early focus on prevention, and clear attention to community health — may inform progress in other countries as well.

With the strict economic embargo, Cuba has developed its own pharmaceutical industry and now not only manufactures most of the medications in its basic pharmacopeia but also invests in developing biotechnology expertise to become competitive with advanced countries.

On July 14, 2014, WHO General Director Margaret Chan urged nations to follow the example of Cuba and phase out the curative model, which is ineffective and more expensive. She noted that Cuba’s healthcare system is based on preventive medicine and the results achieved are outstanding. “We sincerely hope that all of the world’s inhabitants will have access to quality medical services, as they do in Cuba,” she said.

Shouldn’t we have developed access to health services first? Shouldn’t we have provided for effective and relevant personnel and medicine before provision of funding? Shouldn’t we be demanding an effective healthcare system that puts the lives of Kenyans above “tenderpreneurs”?

The spectre of revolt looms large

What did our leaders do once in power? What can explain the obscene affluence of a few in the sea of poor Kenyans? A 2014 survey conducted over a span of eight years by New World Wealth, a South African-based research firm exposed a grim picture of wealth distribution in Kenya. It showed that 46 per cent of the country’s 43.1 million people live below the poverty line, surviving on less than Sh172 ($2) a day. The report further stated that: “nearly two-thirds of Kenya’s Sh4.3 trillion ($50 billion) economy is controlled by a tiny clique of 8,300 super-wealthy individuals, highlighting the huge inequality between the rich and the poor”.

Shouldn’t we have developed access to health services first? Shouldn’t we have provided for effective and relevant personnel and medicine before provision of funding? Shouldn’t we be demanding an effective healthcare system that puts the lives of Kenyans above “tenderpreneurs”?

Inequality is immoral. Moreover, the proportions we have here kills. Göran Therborn, who has appropriately titled his book The Killing Fields of Inequality, highlights several ways in which inequality kills. It violates basic human rights. It excludes “people from possibilities produced by human development.” It is divisive; it tears people and families apart, it creates exorbitant squandering, self-indulgent profligacy and, therefore, dehumanises both the poor and the rich.

This appalling situation is a result of political leadership bereft of a moral guiding philosophy. Leadership is viewed in transactional and contractual terms; it is a means to acquire wealth. This may explain why we are confronted on a daily basis with grand scandals of greed, corruption, and looting of public or state resources. Isn’t this what Jean-Francois Bayart described as the “politics of the belly”? Do leaders care that they took an oath to serve the people of Kenya?

Prof. Aloo Mojola of St. Paul’s University in Limuru, Kenya, explains our reality as one “peopled with many atomistic leaders and a populace whose one and only preoccupation is personal gain and aggrandisement at whatever cost.” He further observes that for the vast majority, the present African situation could simply be characterised as Hobbesian. This description is derived from the words of the English political philosopher Thomas Hobbes (1588-1679), who in the mid-17th century wrote in his classic text Leviathan (1651): “The condition of man … is a condition of everyone against everyone…in such a condition there is no place for industry…” Sadly, for these Hobbesians, “the notion of right and wrong, justice and injustice have there no place…force and fraud are…(the) two cardinal virtues”.

This appalling situation is the result of political leadership bereft of a moral guiding philosophy. Leadership is viewed in transactional and contractual terms; it is a means to acquire wealth. This may explain why we are confronted on a daily basis with grand scandals of greed, corruption, and looting of public or state resources.

Unless our leaders adopt a covenantal approach that obliges leadership to better the lives of ordinary citizens, we will be stuck in this quagmire. Our leaders must develop a political philosophy that puts Kenyans at the centre of their agenda. The depth of our problem is explicit, particularly when government policies lean more towards sustaining local and foreign entrepreneurs rather than solving citizens’ problems.

What options remain for citizens when their government fails perpetually to secure their wellbeing? Thomas Jefferson and his colleagues in the American Declaration for the Independence of 1776 were emphatic that the task of government was securing its citizens’ rights to certain unalienable rights which were: “Life, Liberty and the Pursuit of Happiness.” It further provided for redress if the government fails to live up to this call when it stated: “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.”

The spectre of revolt looms large over Kenya. The youth have lost faith in law reforms or societal reorganisation. They dismiss the “building of bridges” – the now famous handshake between President Uhuru Kenyatta and Rt. (Hon.) Raila Odinga – as a political gimmick that is slowing down the country’s transformation. Revolution is what they are working at. I doubt that they have thought through the end-product of their craving.

Tanzania’s founding President Dr. Julius Nyerere was disturbed and horrified when he realised that he had become the architect of a government-sponsored system of inequality. He was moved to do something about it. His Ujamaa system of African socialism offered a response and attempt to remedy this situation. Aren’t our political leaders able to develop a coherent philosophy to shape our nation’s development agenda?

The spectre of revolt looms large over Kenya. The youth have lost faith in law reforms or societal reorganisation. They dismiss the “building of bridges” – the now famous handshake between President Uhuru Kenyatta and Rt. (Hon.) Raila Odinga – as a political gimmick that is slowing down the country’s transformation. Since political leaders have failed Kenyans in this respect, can religious leaders provide alternative leadership and nudge the country towards the poor who are perpetually left out? The similarities between Kenya and Latin American countries are striking. David Tombs, in Latin American Liberation Theology, illustrates how the great Latin American independence movements, which had promised liberation and new hope through independence from the Iberian empire, only benefitted an elite sector of society. Here the Creole class assumed governance replacing the peninsulares, yet they did little to alleviate the struggles of the lower classes.

The clergy and theologians in Latin America were on the vanguard of change in addressing the grievances of the poor and transformation of their society. During the Conference of Latin American Bishops held in 1968 in Medellin, Colombia, the bishops agreed that the Church should take “a preferential option for the poor”. One of the architects of this movement was Father Gustavo Gutierrez, a Roman Catholic priest from Peru, who acknowledged to have been inspired by the Cuban revolution of 1959. He laid out clearly the concepts he referenced during this talk in 1968 in his 1971 magnum opus, “A Theology of Liberation”. Consequently, liberation theology emerged as a new way of “being human and Christian”. In proposing a “preferential option for the poor,” the Church was encouraged to extend its work to directly address the struggles of the impoverished and to work specifically to ameliorate “physical and spiritual oppression”.

Rather than small ineffective reforms, liberation theology supported work towards systemic change and even the possibility of revolution as a means of freeing the poor from oppression. While violence was not encouraged, it was justified as a possible last resort or necessity of the revolution.

We must credit liberation theology for changing the role of the Church in Peru and all of Latin America forever. By giving a voice to the impoverished, liberation theology held the Church accountable for the welfare of the lower classes, recognising the essential role of social justice in Christian teachings. The Christians demanded that the Church do more than simple charity and work towards playing a more active role in the promotion of systemic change. This movement realigned the power structures of Latin American society and showed that religion could deliver change in society by forcing the hands of politics.

Where are the Kenyan theologians who will develop a theology that will focus the Church away from solely eternal salvation to the more pressing necessity of earthly liberation of the poor from oppression and suffering? The genius of the religious figures like Gustavo Gutiérrez was in integrating the liberation of the working class into Biblical interpretation.

Independence in Kenya has proved not to be the low-lying fruit ordinary folks anticipated. Prof. Micere Githae Mugo’s (1973) poem “I Took My Son by the Hand”, in David Rubadiri (ed), (1989), depicts this sorry state in the dialogue between a mother and her son who yearned for the fruits of independence.

“Mother?” he asked, “Do we have matunda ya uhuru in our hut?”

Mother: “I laughed foolishly”

Son: “Mother!”

Mother: “Yes son? ”

Son: “Do we have some?”

Mother: “Silence…” Son: May I eat one, when we get there?

Mother: “Move on son darkness is looming fast around us”.

There is a possibility to reorient the policies of our nation towards the vulnerable. It should take all of us to achieve this – the government, civil society, and religious communities. If we do not sincerely address the dire challenges faced by the poor, we must get ready for chaos.

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Will CJ Koome Obey Pharaoh or Will She Walk the Path To Free Wanjiku?

By Francis Omondi The Church in Kenya struggles in silence while endemic corruption ravages the public and private sectors of the country. On this matter, I’d rather lament with Prophet Jeremiah when he supplicated the appalling backsliding of his people by asking: “Is there no Balm in Gilead? Is there no physician there? Why is the wound of my people not healed?”, rather than sing in faith, the Negro spiritual affirming: “There is a balm in Gilead to heal a sick, sick soul…”

Wounds inflicted by corruption on this nation will need a more “potent balm”, yes, more than an “expert physician”, for neither the laws enacted so far nor the commission instituted to deal with the scourge have proven effective.

The law is clear: Corruption, active and passive bribery, abuse of office and bribing a foreign public official are outlawed under the Anti-Corruption and Economic Crimes Act 2003, which is further reinforced with the Bribery Act of 2016 ostensibly to aid in the fight against the supply side of corruption.

Comprehensive enforcement of Kenya’s anti-corruption framework, however, remains a challenge because of weak and corrupt public institutions.

But in choosing silence in the face of this obscene level of corruption, perhaps at the counsel of the English poet Thomas Carlyle (“Silence is Gold”) or the American rock song by the Tremeloes (“Silence is Golden, but my eyes still see, Silence is Golden, but my eyes still see…”), the Kenyan Church is abdicating its unique and vital role in society. What has become of the once-vibrant voices within the Church who challenged the draconian Moi rule, risking their lives for a just cause?

Then the Church took a radical and militant approach. It was not afraid to say, like the prophets of old: “Thus says the Lord…” It had clarity on matters of national importance affecting the people, unlike its counterparts today, who are even failing to define their own mandate.

Pope Benedict XVI is emphatic about the role the Church should play in society. He defines the Church’s role in the political sphere as primarily education (understood not as schooling, no matter how important that is): “The Church must awaken man’s receptivity to the truth, to God, and thus to the power of conscience. It must give men and women the courage to live according to their conscience and so keep open the narrow pass between anarchy and tyranny, which is none other than the narrow way of peace.”

Then the Church took a radical and militant approach. It was not afraid to say, like the prophets of old: “Thus says the Lord…” It had clarity on matters of national importance affecting the people, unlike its counterparts today, who are even failing to define their own mandate.

He also highlights the need for society, both local and global, to recover the divine element in our humanity, which includes moral consensus, without which society flounders and humanity is endangered.

There are some though, who would rather have an aloof Church and one that is measured in contentious matters of public concern. Stephen Carter, the Yale scholar, in his book, The Culture of Disbelief, laments that “our public culture more and more prefers religion as something without political significance, less an independent moral force than a quietly irrelevant moralizer, never heard, rarely seen.”

Could it be that the dearth of the prophetic voice is a sign of a Church struggling to define itself and its societal role in the post-2003 era? Kenya needs to hear what the Church is thinking and saying on corruption. The Church cannot extricate itself from politics because it cannot refrain from the task of reflecting on the implications of its faith within our political context. It has reason to intervene, for we cannot afford the haemorrhaging of this country through corruption.

A 2016 survey released by Pricewaterhouse Coopers (PwC) indicated that the rate of economic crimes in Kenya is 25 per cent above the global average. It further revealed that every record set against stealing is broken. In the year 2015 alone, economic crimes rose to 61 per cent from 52 per cent in 2014 and maybe worse today. Philip Kinisu, a retired auditor and a former chairman of the Ethics and Anti-Corruption Commission (EACC) told Reuters: “Kenya is losing a third of its State budget – the equivalent of about $6 billion (KShs. 608 billion) – to corruption every year.”

Our plight did not escape the notice of former United States President Barack Obama during his visit in 2015. He rightly criticised Kenya’s corruption, inequality, and tribalism before an audience, which included President Uhuru Kenyatta and his Cabinet, at Kasarani Sports Centre in Nairobi.

Obama quoted a study showing that every year corruption costs Kenya 250,000 jobs. He said rising prosperity in the economy was leaving out the vast majority of the people, the burden of which is borne by the poor.

This is exactly what Samuel Paul of the Public Affairs Centre in Bangalore established in “Corruption: Who Will Bell the Cat?” His study found that in five Indian cities, poor households were much more likely to pay “speed money” for public services than households in general. Consequently, when access to public goods and services requires a bribe, the poor may be excluded. Given their lack of political influence, the poor may even be asked to pay more than people with higher incomes. Furthermore, when corruption results in shoddy public services, the poor lack the resources to pursue “exit” options, such as private schooling, health care or power generation.

We can learn from the struggles of the 1980s, during which Galia Sabar, Professor of African Studies at Tel Aviv University, observed that limited political association paralysed the process of transforming information and ideas into action. As such, she gave credence to the emergence of informal individual activism and the culture of defiance that was growing day by day.

On the frontline of Kenya’s individual Church activism during the Moi era were the Anglican Church’s Bishop Henry Okullu of Maseno South Diocese, Bishop Alexander Muge of the Diocese of Eldoret, Bishop David Gitari, the Anglican prelate of Mt. Kenya East diocese, and Rev. Timothy Njoya, a moderator in the Presbyterian Church of East Africa (PCEA). These clerics triggered the much-needed change in the country through their political engagements.

Citing the February 1990 edition of Finance magazine, Sabar in “Politics and Power in the Kenyan Public and Recent Events: the Church of the Province of Kenya, said: “Irrespective of how much we might belittle their social standing, the clerics represent the most cohesively structured, the most firmly organised and the most solidly unified institution in the country.”

Stephen Kapinde, a lecturer at Pwani University’s Department of Philosophy and Religious Studies, observes how the vitality of the pulpit as a stable platform for change and the sermons of Bishop Gitari (at a time when the state had censored nearly everyone and proscribed gatherings of more than three people) gave credence to the Church in political discourses. The prelate and his peers developed a culture of resistance through the pulpit.

Prof. Robert Press, in his book, Peaceful Resistance: Advancing Human Rights and Civil Liberties, gave more insight into this culture by observing that: Individual activists can only do so much in their role as ice-breakers in the reform process. Organizational activists build on their advances but need the presence of members of the public at their events to make a serious bid for reforms. The public, in turn, needs the forum for the activists to express their discontent. Together the resistance sends signals to the regime, the public and international officials and agencies that the demands for change have substance and visible public support.

For this reason, the clergy blazed the trail for democratic reforms from their pulpits. Amazingly, such activism was thought by many to defile the pulpit, while in essence, the clerics used the space to liberate the people of Kenya, thereby living up to their calling to be “salt” and “light” in the world.

The contrast is huge today – pulpits are not as sacrosanct and neither are their messages. The frequency with which politicians have graced churches with goodies from corruption, coupled with the silence of clerics, is troubling.

For this reason, the clergy blazed the trail for democratic reforms from their pulpits. Amazingly, such activism was thought by many to defile the pulpit, while in essence, the clerics used the space to liberate the people of Kenya, thereby living up to their calling to be “salt” and “light” in the world.

For instance, Deputy President William Ruto has been a darling of Churches during funds drives, notwithstanding the fact that he has been named in a litany of corruption-related scandals. Indeed, former Prime Minister Raila Odinga in 2015 described him as “the high priest of corruption in Kenya.”

The Anglican Church had an explicit stand on the widespread habit of inviting public figures as guests of honour at fund-raising events. Following the Provincial Board of Christian Community Services consultation on “The Theology and Philosophy of Development” held at St. Julian Centre between 11th and 13th May, 1983, the Church issued protocols to protect the likely erosion of the Church’s prophetic role in society:

Inviting public figures as guests of honour at Church harambees or giving them prominence in a church function merely because of the money they bring is not in accordance with our Christian principles. It tends to silence the prophetic voice of our church leaders (A report of the CPK Consultation on Theology and Philosophy of Development, 1989: p. 5, ¶4).

Today, however, several Anglican Churches have overlooked this protocol and indulged the said politicians on their pulpits, thus diluting their prophetic voice. How would they escape the tag of being an accomplice to corruption? They should have heeded Joseph Kamaru’s warning in his song, J. M. Kariuki, “gûtirí múicì na mùcudhìríria” (there is no difference between a thief and a mere observer).

The contrast is huge today – pulpits are not as sacrosanct and neither are their messages. The frequency with which politicians have graced churches with goodies from corruption, coupled with the silence of clerics, is troubling.

According to British evangelist and theologian G. Campbell Morgan, “Sacrilege is defined as taking something that belongs to God and using it profanely. But the worst kind of sacrilege is taking something and giving it to God when it means absolutely nothing to you.” If we accept this, then the Church would have committed double sacrilege in this indulgence: Knowingly giving platform to sanitise corrupt money in the name of God, and perpetuating delusion that that is investing in heaven.

How do I answer my friend Joe Kobuthi’s query: “What does it mean when the Church goes quiet or turns a blind eye to corruption to the extent that a politician like Ruto can claim his contributions to churches to be ‘investing in heaven’”?

The Church, by indulging in questionable money being “invested” in its programmes, undermines its own ability to help the poor. Proper “investing in heaven” is investing in Christ. St. John Chrysostom (347-407 AD), one of the greatest Early Church Fathers of the 5th century, warned: “Of what use is it to weigh down Christ’s table with golden cups when he himself is dying of hunger? First, fill him when he is hungry; then use the means you have left to adorn his table. Will you have a golden cup made but not give a cup of water? What is the use of providing the table with cloths woven of gold thread and not providing Christ himself with the clothes he needs? What profit is there in that?”

How do I answer my friend Joe Kobuthi’s query: “What does it mean when the Church goes quiet or turns a blind eye to corruption to the extent that a politician like Ruto can claim his contributions to churches to be ‘investing in heaven’”?

How about using one’s position in government to save the annual 250,000 jobs lost to corruption? Wouldn’t that give many Kenyans opportunities to feed their hungry, and not to leave them to stare at Church tables embellished with gold? Investing in heaven would mean putting to proper use the US$6 billion lost to corruption to provide for proper health services and housing for homeless Kenyans.

The Kenyan public is livid at the multi-million-dollar scandals that have failed to result in high-profile convictions. They accuse politicians and top government officials of acting with impunity and encouraging graft by those in lower posts.

Again, Kinisu opines the real drive to stamp out corruption has to come from public pressure for change. Yet in an environment of fear and intimidation by corruption cartels and politicians, it becomes nearly impossible to set up any social movement against corruption.

A curious episode in J.R.R. Tolkien’s The Fellowship of the Ring is instructive, as it well depicts our challenge on corruption:

“I wish it need not have happened in my time,” said Frodo.

“So do I,” said Gandalf, “and so do all who live to see such times. But that is not for them to decide. All we have to decide is what to do with the time that is given us”.

It is not freedom from corruption, but rather the freedom to take a stand against it, that we must all pursue. If the Church is to retain its credibility and relevance, I believe it needs to utilise its eminent position to influence public opinion on matters affecting the nation. I would like to believe that, sooner or later, it will recover its earlier prophetic fervour for the sake of the public good and provide the moral leadership we so desperately need today in the epic fight against corruption.

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Will CJ Koome Obey Pharaoh or Will She Walk the Path To Free Wanjiku?

By Francis Omondi

*This reflection is dedicated to my spiritual son, Jesse Masai, and several others like him who constantly wrestle with the question of their responsibility to the Republic in this season.

An old proverb says, “We have not inherited this land from our forebears, we have borrowed it from our children.” Here, we are debtors and owe our children a prosperous future.

The extent to which we develop our democratic institutions, entrench the rule of law and build a prosperous economy shows our obligation towards them. The dream of a land of freedom, where individual rights are guaranteed and where all prosper is fast turning into a frightening nightmare. The once-abhorred Nyayo era, marked with authoritarianism, state terror, press censorship and violation of human rights is back with a vengeance.

Throughout my writings, I have strenuously been trying to be non-partisan on party politics. This then is the article I thought I would never write: a candid assertion that a certain form of partisanship is now a moral necessity. The Jubilee government, as an institution, has become a danger to the rule of law and to the integrity of our democracy. The problem is not just President Uhuru Kenyatta; it’s the larger political apparatus, including Parliament, that made a conscious decision to enable him.

In a multi-party system, non-partisanship works only if all players are consistent democratic actors and subject to independent institutions that safeguard democracy. If one of them is not predictably so, the space for non-partisanship evaporates. I am thus driven to believe that the best hope of defending the country from Uhuru’s Jubilee enablers and saving the nation is to stage a public protest as Muthoni Nyanjiru and Nobel Laurent Professor Wangari Maathai did in 1922 and 1992, respectively. Protest against the government and Parliament until they get it right or implode!

The Jubilee government, as an institution, has become a danger to the rule of law and to the integrity of our democracy.

How can a prosperous future for our children be realised under these conditions? This is not how we pay the debt we owe our children. Today’s youth must not allow us to squander that future. There is an urgent voice calling for action now: “Wade in the waters, children…” Can’t we hear it?

The legendary Harriet Tubman, also known as “Moses” (who once had a US$40,000 price tag on her head for “slave stealing”), sung this song to alert the runaway slaves she guided to freedom. The song signaled to runaways: “Use the river so the hounds can’t trace you. Tonight is the moment for flight; move swiftly; the reaction will be fierce.” Harriet speaks to us today: Now is the time: stop this backsliding, “wade into the waters”, free our children from slavery. Wade into the waters, children!

This advice does not seem smart at first. Why would one want to jump into waters that God stirred up (described in the Bible as troubled)? For many Kenyans, the failure of the opposition NASA to guide them to Canaan is troubled waters. Under persistent attacks – many of them seemingly minor – democratic institutions in Kenya have been eroded gradually until they have failed. The undermining of the independence of the electoral commission, the police service and the free press has rendered our democratic process useless. Our waters are troubled in at least two possible ways.

Lately, we have come to regard the government as a danger to the Constitution of Kenya 2010. It has proved unable or unwilling to block assaults on the rule of law. If these assaults are normalised, they will pose an existential threat to Kenya’s future.

Secondly, our economy is being shackled with foreign debt. This act makes a mockery of the 2000 Jubilee campaign that pushed Western countries to forgive crippling foreign debts of the world’s poorest countries, including Kenya. It is irresponsible to deliberately and unnecessarily enslave our children’s future in debt, erasing their future ability to compete in this world.

There is an urgent voice calling for action now: “Wade in the waters, children…” Can’t we hear it? Francis A. Schaeffer, warning in his book How Should We Then Live? is instructive to us in Kenya: “If we…do not speak out as authoritarian governments grow from within or come from outside, eventually we or our children will be the enemy of society and the state. No truly authoritarian government can tolerate those who have real absolute by which to judge its arbitrary absolutes and who speak out and act upon that absolute.”

A similar situation is playing out in a Kenya that negates the government’s claim to construct a prosperous future for our children. Instead of addressing these challenges, the government elects to shut down media channels that expose its incompetency and locks up critics who question its legitimacy. This is a perfect recipe for national rebellion.

Fredrick Douglas warned: “The thing that is worse than rebellion is the thing that causes rebellion.” Failure to address the causes of disquiet – and instead opting to use unconstitutional means to silence people – will be the Achilles heel of this government. This may have a tragic ending.

When Laius, the King of Thebes, is told by the Oracle of Delphi that his son will kill him and sleep with his mother Jocasta, the king pierces his baby son’s ankles and leaves him on a mountainside to die. This becomes the first of a sequence of events that leads to the Oracle’s prophesy being fulfilled. For a shepherd finds the baby and takes him to King Polybus and Queen Merope of Corinth, who name him Oedipus and raise him as their own.

Failure to address the causes of disquiet – and instead opting to use unconstitutional means to silence people – will be the Achilles heel of this government. This may have a tragic ending.

Later, Oedipus seeks the help of the Oracle of Delphi to know his parentage. The Oracle tells him that he’s destined to kill his father and sleep with his mother. Oedipus tries to run from this fate, but ends up running right into it. He kills Laius in a scuffle at a crossroads, not knowing he’s his real father. Later, he wins the throne of Thebes and unknowingly marries his mother, Jocasta, after answering the riddle of the Sphinx. When they figure out the truth, Jocasta hangs herself and Oedipus stabs out his own eyes. The Greek story ends in tragedy.

In the spiritual song – Wade in the Waters – those who will be blessed are urged to step into the waters first, before the angel of God comes. The song stresses meeting hardships with courage and “steady” faith; gather now and get ready, the healing is promised. Gather now, so that all will be among the first received and delivered by the gifts of grace that spring forth in dark times. While addressing young Germans in Stuttgart on the need to stand for human dignity, former United Nations Secretary-General Dr. Kofi Annan said: “You are not too young to lead, for to lead means to take responsibility and set example.” He explained, “When leaders fail to lead, the people can lead and make leaders follow.” For this very reason, youth in this country must wade in the waters and assume leadership to save their future.

But can we rely on the youth to deliver?

Harris Okongo Arara went to Chianda High School in Uyoma, Siaya County, the same school I attended. He was the best footballer and hockey player that the school ever produced. Upon completing his studies, Arara joined the Kenya Air Force. When he was in his 20s, he became an activist for change and courageously led the fight to end one-party dictatorship in Kenya. What he told a Nairobi court about to sentence him to jail for sedition on September 24, 1988, expressed the values he stood for and the vision he had for Kenya. He declined to plead for leniency or mercy. With confidence, he dismissed the courts’ right to judge him. Arara questioned why he should seek personal mercy while millions of Kenyans lived in misery. He was proud to join the company of those he called apostles, who attempted to rescue justice but found themselves in detention, prison or exile. He said:

The people of this nation are simply demanding their fundamental rights and freedoms. They are simply demanding their rights to a decent living, right to education, right to proper medical care, right to housing. In short, the right to be human beings. If that is sedition, so be it. These are the goals for which I have always fought, and for which I am prepared to die.

Arara was sentenced to a five-year jail term. This was his second stint in jail, having been in detention without trial for six years following the 1982 coup attempt. Arara had only been free for eight months at the time of this sentencing. He was wading into the troubled waters of the Nyayo era.

We learn history because through it we understand the sacrifices that were made before, so that when we make sacrifices we understand we’re doing it on behalf of future generations. It is possible to resist oppressive laws enacted by Parliament that undermine the Constitution and degrade human dignity.

In 1922, for instance, 27-years old Harry Thuku, the leader of the East African Association, was arrested for acting and speaking against “forced labour of women on the roads”. Officials of the nationalist association rallied African workers in Nairobi to go on strike. On March 15, transport workers, domestic workers and government employees deserted their workplaces and gathered in front of the police station where Thuku was being held. Makhan Singh, in History of Kenya’s Trade Union Movement to 1952, wrote: “As the crowd grew, a deputation of the East African Association, including Jomo Kenyatta, held a meeting with Acting Governor Sir Charles Bowring in his office.”

According to Audrey Wipper, who wrote the chapter “Kikuyu Women and the Harry Thuku Disturbances: Some Uniformities of Female Militancy in the Africa” in the Journal of the International African Institute, Nyanjiru and her stepdaughter, Elizabeth Waruiru, were among the city’s female workers who came out to demonstrate. Nyanjiru was a Kikuyu woman who had moved from the village of Weithaga in the native reserves to Nairobi. Addressing the strikers, Jomo Kenyatta announced the deal the East African Association deputies had reached with the governor: Thuku could not be released, but the governor had promised him a fair trial. He then urged the demonstrators to disperse.

It is possible to resist oppressive laws enacted by Parliament that undermine the Constitution and degrade human dignity.

Nyanjiru stood in the front of the crowd near Kenyatta as the demonstrators began leaving. She threw her dress over her shoulders and exposed her naked body, taunting the cowardice of the men and challenging them to stand up to Kenyatta. (In Ngugi wa Thiong’o’s A Grain of Wheat, Nyanjiru is presented as a woman who is incensed by men’s impotency against colonial oppression. She challenges men to swap their trousers for women’s skirts.) Nyanjiru threatened to lead the demand for Harry Thuku’s release if the men were too cowardly to do it.

The 300 women present ululated loudly. The strikers were galvanised by Nyanjiru’s actions and the women’s call to battle. Men who were beginning to disperse returned. A large section of the crowd rushed forward towards the armed guards. Nyanjiru stood only a few feet away from the guards, who had been on duty for 18 continuous hours. The guards kneeled and engaged their rifles at the command of the superintendent of police, Captain Carey. In the end, 200 Kenyans died. Thuku was exiled, first to Kismayu, then to Marsabit, Witu and Lamu. But as Bryan Ngartia observed in The Ageless Defiance of Muthoni Nyanjiru, “the sacrifice wasn’t all in futility. The tax was reduced from 16 shillings to 12 shillings and was never again raised for the sole purpose of filling labour needs. African grievances were given serious consideration.” This was the seed of struggle that matured in the later independence of Kenya.

Where Are Those Songs? Micere Githae Mugo pleads with our mothers today:

Where are those songs / my mother and yours / always sang / fitting rhythms / to the whole / vast span of life/? […] Sing Daughter sing […] sing/simple songs/for the people/for all to hear/and learn/and sing/with you. In 1992, Prof. Maathai led mothers of political prisoners detained by the Moi regime to occupy Freedom Corner in Nairobi’s Uhuru Park. The government, in now familiar style, dispatched armed police to evict the women, who stripped naked in protest and defiance. Prof. Maathai was beaten unconscious and hospitalised, but the women of Freedom Corner eventually won. Prof. Maathai and her group of women also stopped President Daniel Toroitich arap Moi – at the zenith of his power – from building what would have been Times Tower, a complex associated with the ruling party, at Uhuru Park.

Women must wade in the waters and refuse to be silenced; they must fight for their children’s future. In her contribution published in The Inquiry in 2013, titled “Silence is a Woman”, Wambui wa Mwangi opposed the exclusionary, false, Gikuyu-centric narrative and ideological erasure of many other ethnic communities in the Kenyan story as told by Gikuyu men. She stresses: “Here, I also want to insist on the strong tradition within Gikuyu women’s culture of resisting tyranny, oppression, domination, and hubristic upumbafuness by the men.” Wambui is right to point us to the fact that authoritarianism has no ethnicity. We all sink under bad leadership.

Wambui is right to point us to the fact that authoritarianism has no ethnicity. We all sink under bad leadership.

In shorthand, the song “wade in the waters” admonished the community not to be like the paralysed man, who seemed unable to seize the opportunity and betrayed to the authorities the one who saved him. The song pairs those who made it to safety with the victims who fell trying. For those who made it through: who that dressed in blue?

And in the description of baptism, a hinted memory of those lost in the middle passage:

Chilled body but not my soul…

We remember that their sacrifices have given us our freedom, made the rule of law possible and set us on the path of prosperity.

I am suggesting that in today’s situation, we all should mount powerful public protest despite our party affiliation or policy position. Our demand should be: The rule of law as a threshold in Kenyan politics. Any party that endangers this value must disqualify itself. We must insist on unadulterated implementation of Chapter 6 of the Constitution of Kenya 2010. Period. Then, perhaps, we too would be wading in the waters.

Going forward, it is likely that public protest will be dealt with ruthlessly and may even be fatal for some, but there is gain for all that we strive for. In the face of brutality against dreams, let us consider the story of Joseph in the Bible. The brothers said, ” Come, let us kill him and throw him into one of these wells…Then we’ll see what comes of his dreams.” (Gen. 37:20) Here the irony could not be more explicit. The very act intended to frustrate dreams by killing the dreamer becomes the beginning of a sequence of events that make the dreams come true. Joseph went on a winding journey from slavery, to Potiphar’s house, to prison and finally to leadership in Egypt.

Let us demand the dreams of our children.

Cited works:

Carl Rosberg and John Nottingham, 1966: The Myth of ‘Mau Mau’: nationalism in Kenya. New York: Praeger.

Ngugi wa Thiong’o, 2012: A Grain of Wheat. Penguin African Writers Series, New York: USA.

Schaeffer, Francis A., 1976: How Should We Then Live? The rise and decline of Western thought. Crossway books Wheaton IL. USA

Singh, Makhan, 1969: History of Kenya’s Trade Union Movement to 1952. Nairobi: East Africa African Publishing House.

Wipper, Audrey, 1989: “Kikuyu Women and the Harry Thuku Disturbances: Some Uniformities of Female Militancy, Africa: Journal of the International African Institute, 59.3: 300–337

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Will CJ Koome Obey Pharaoh or Will She Walk the Path To Free Wanjiku?

By Francis Omondi Kenya is on the brink of plummeting into the abyss of political catastrophe. The government and the opposition are locked in an existential contest for Kenya’s leadership. Either the government will cement its hold on power by employing all means possible (illicit not excluded) or the opposition National Super Alliance (NASA) will wrench power in a way not yet anticipated (but adjudged illegal). Such is the fix that my people would say, “Thuol odonjo e ko” (The snake has entered the guard, would we salvage the milk or the gourd?)

Could it be that Kenya is headed for apocalyptic politics?

Critics of this government accuse it of wantonly undermining Kenya’s democratic principles by infringing on democratic accountability, individual rights and the rule of law. This has been manifested in its preference for tyranny rather than dialogue as a response to pressure from the opposition and other critics. Toiling to deter and deal with dissidents, the State has turned to its vast repressive apparatus on Kenyans perceived as a threat.

The repeat election on 26 October exposed what has been a closely-kept secret: a government appearing strong on the outside but whose power remains brittle at its core.

The first victims of the State’s assault have been democratic institutions. The opposition politicians are harassed and picked up by police on flimsy charges. Basic freedoms of expression and assembly have been restricted in practice, though not in law. Elections have become choreographed performances that are neither free nor fair. At its core, this assault has been motivated by the regime’s desire to protect power and accumulate wealth. The government purports to run the country according to the tenets of Western democracy. What we have, however, is a democratic facade, paying lip service to those tenets even as they are subverted.

The repeat election on 26 October exposed what has been a closely-kept secret: a government appearing strong on the outside but whose power remains brittle at its core. It is apparent that the regime projects a nimbus of invincibility that masks the shallow roots of its public support. What else would necessitate the massaging of votes, the muzzling of civil society organisations, the swamping of social media with propaganda and the hyping of approval ratings and other forms of manufactured consent?

NASA’s hopes of assuming power have been reliant on the independence of the country’s institutions. The opposition demands that the principles of democracy be applied in toto. When the Independent Electoral and Boundaries Commission (IEBC) failed to conduct a free and fair election on 8 August 2017, they said that these principles had been manipulated or distorted. The opposition threatened to unleash its final bullet, “wacha kiumane” (let hell break loose). This meant that it would arbitrate its case on the streets, thus confronting a government ready to crush protests even if lives were lost.

The opposition has a large and increasingly radicalised and aggrieved following. These people are determined to change their situation no matter the consequences – anarchy or death don’t matter.

Rabbi Jonathan Sacks, in his book Not in God’s Name, explained that: “Apocalyptic politics is the strange phenomenon of a revolutionary movement whose gaze is firmly fixed on the past. It arises at times of destabilising change and speaks to those who feel unjustly left behind.”

In messianic politics, people believe that the destination is close and God is beckoning. “Hence the readiness of messianic militants to welcome even to initiate the terrors that proceed the last days”, writes Michael Walzer. “Hence the strange politics of the worse the better and hence the will to sin, to risk any crime for the sake of the end.”

The opposition’s followers had high hopes of reaching “Canaan” this time around. The manipulation and illegality of the election stole this hope, and with it went the aspiration for change. They were stranded

“wondering between two worlds,

one dead the other powerless to be born.”

(Matthew Arnold, Stanzas from the Grande

Chartreuse [c1850)

Rabbi Jonathan Sacks, in his book Not in God’s Name, explained that: “Apocalyptic politics is the strange phenomenon of a revolutionary movement whose gaze is firmly fixed on the past. It arises at times of destabilising change and speaks to those who feel unjustly left behind.” It is the longing for the end of time in the midst of time, the search for redemption now. That is why this political position suspends the normal rules that restrain people from murdering the innocent.

It is like Samson in the Temple of the Philistines, bringing down the building on his enemies but destroying himself in the process.

If the event of Raila’s return from his USA trip is indicative of the future, then I am certain we are on the cusp of revolt and Armageddon. The disenfranchisement in the country must be addressed, and all should have an opportunity to prosper. With increasingly dim prospects for a livelihood, health care and a future to latch on to, the protesting opposition followers cannot be deader than they are already. It’s already tragic.

Nowhere is this condition as explicit as in the myth of Sisyphus. Condemned by the gods to roll a rock to the top of a mountain, whereupon its own weight makes it fall back down again, Sisyphus was trapped in this perpetually futile labour. He was condemned to everlasting torment and the accompanying despair of knowing that his efforts were pointless. Efforts to bring about change in Kenya have also been futile. Hopes hinged on the Constitution of Kenya 2010 did not materialise.

Intriguingly, Albert Camus, the French philosopher, noticed defiance in Sisyphus at the moment he goes back down the mountain. The consciousness of his fate is the tragedy, yet consciousness also allows Sisyphus to scorn the gods, providing a small measure of satisfaction. There is a mingling of satisfaction and tragedy, which is reflected in the opposition followers’ loaded scorn in the face of police brutality: “I would rather die standing than kneeling.”

Yet we delude ourselves when we claim that the problems facing Kenya are due to individual politicians. Ignoring these seismic shifts that undermine the foundations of the country’s democracy and fault Raila and his followers’ street protests is also cheeky dishonesty.

The opposition’s unexpected decision to go to the Supreme Court shifted the direction of events and possibly averted a grave bloody encounter. The Supreme Court judges, acting according to their conscience, kept Kenya on the narrow pass between anarchy and tyranny, on the narrow way of peace. In asserting their independence, they ruled to nullify the election and called for repeat polls. This salvaged the country by redirecting energies towards reforms. The opposition recognised that pursuing the reform of independent bodies would build lasting peace for the country, and therefore demanded changes and openness within the vilified IEBC.

The opposition also sought reforms of the laws that the Supreme Court applied to nullify the polls. They opted to regularise the “irregularities” and make illegalities “legal”, so to speak. Parliament, without opposition members, made changes in law apparently to make it easy for Jubilee to win in the repeat polls. This was a significant and definitive decision that, as we shall learn, took the country away from the path of peace back to the sinking sands of uncertainty. The resulting confusion at the IEBC, working under duress and alleged pressure from the State, forced a key member of the commission to quit. The president is believed to have tacitly supported the confusion; he had to win in the repeat election and so made these decisions willfully.

Yet we delude ourselves when we claim that the problems facing Kenya are due to individual politicians. Ignoring these seismic shifts that undermine the foundations of the country’s democracy and fault Raila and his followers’ street protests is also cheeky dishonesty. Why could we not see the obvious in the president’s decisions? That he first repudiated the faith on which the nation was founded – the rule of law and therefore the Judiciary and the Constitution. Then the precepts that governed the country, the independent institutions of the nation: the police force, IEBC, the Directorate of Public Prosecutions, all which were so systematically strangled that they effectively operate under instruction “from anonymous sources” (guessing who these sources are is not difficult). The stifling of public freedoms and the vigour with which civil society organisations were hunted threatened the moral framework that gave us the impetus for a free society under the Constitution of Kenya 2010.

These are the terrifying decisions he made. They are the kind of decisions we are making all over the world at this time. The entire global monetary crisis of 2008 was based upon a framework that defies the moral law of God. This framework allows you to violate the rules, to cheat in elections and to build your own storehouses while exploiting others and eliminating anyone who stands in your way. The truth has been simplified to the most elemental choice: agree or die. We have desecrated the very essence of human life, which is why the normal rules that restrain people from murdering the innocent are suspended. Very seldom do we talk about the right to be human. And we think we can do all of this with impunity? These are the issues that are strangling Kenya.

Consequently, the opposition lost patience. Essentially, it wanted a revolution without the slow process of transformation. Its decision to withdraw from the rescheduled election of 26 October 2017 – informed by the failure of the IEBC to act independently and to reform – reflects this frustration. In the determination to act for change, the opposition resorted to the setting up of People’s Assemblies at the county levels across the nation, as it were, invoking the sovereignty of the people as enshrined in the Constitution. It won’t accept Uhuru as president, instead demanding to swear in Odinga as the people’s president (initially scheduled for the 12 December 2017 but which took place on 30 January 2018). The details of this and how it will sit in law is still opaque. Here are an ominous sign of imminent legal confrontations and conflicts.

These political protagonists look to use power in the place of persuasion, to use daggers instead of debate. There are no listening ears among them or their followers. The government resorts to tyranny and brutal force, while the opposition urges the masses to revolt and spread anarchy.

What Prof. Ogude observed of the post-Kenyatta State can be said of this regime – an increase in what may be called “an ethnocratic state” whose basic political rhetoric is nation-building, while in practice it undermines any real desire for nationhood.

What ails Kenya’s politics is not ethnicity per se. The seismic events of 2002 – when the organised opposition seized power – proved that Kenyans can come round. Such coming together, however, has the potential to inflame violence, as we would witness five years later.

Prof. James Ogude, a Senior Research Fellow and Director at the Centre for the Advancement of Scholarship, University of Pretoria, exposed the popular use of “ethnicity as a means to establishing difference or exclusivity for political expediency”. Holders of power are bent on wantonly wrenching the thin web that binds Kenya. They dutifully ape the nation’s founding fathers, who established the country on the ethnic exclusion of certain communities perceived to be a threat to the State. What Prof. Ogude observed of the post-Kenyatta State can be said of this regime – an increase in what may be called “an ethnocratic state” whose basic political rhetoric is nation-building, while in practice it undermines any real desire for nationhood. It is unfortunate that political leaders goad ethnic hostilities like the bullfighters in Khayeka, Kakamega County. They have weaponised ethnicity.

The real shame has been the failure to transition from ethnic-based to ideologically-based politics. Aggravating this situation is the absence of concrete class markings, which allows this void to be filled with tribalism. We are ruined when in the absence of proper political ideology, tribalism has filled the vacuum. Prof. Colin Leys, writing in the Institute of Development Studies Bulletin 7(3): Underdevelopment in Kenya, The Political Economy of Neo-Colonialism affirmed this when he said, “‘Tribalism is in the first instance an ideological phenomenon. Essentially, it consists in the fact that people identify other exploited people as the source of their insecurity and frustrations, rather than their common exploiters.”

Of course, this does not happen “spontaneously”. Kenyans are victims of political leaders who create this situation. The challenge, therefore, goes beyond individual politicians and tribalism, and to our refusal to agitate for the establishment of effective democratic institutions to serve all Kenyans.

Tribalism serves our politicians by retarding the development of mass class-consciousness, which in turn is achieved by deliberate recasting of such issues into tribal terms. Colins Legum, in his book Africa Since Independence, observes how “politicians seek to secure their class position by constructing inter-tribal patron-client hierarchies, defining social conflicts in terms of ethnic relationships…” What this argument reveals also is that, although ethnic categories have intrinsic reasons for existence, it is not a given that ethnic groups must develop on the basis of mutual hostility and competition.

The book of Genesis in the Bible is about the willingness to accord dignity to the other rather than see them as a threat. The classification of “others” as threats has enabled pathological dualism that, according to Sacks, “divides humanity into children of darkness and of light, all good among us but all evil in the others”.

The book of Genesis in the Bible is about the willingness to accord dignity to the other rather than see them as a threat. The classification of “others” as threats has enabled pathological dualism that, according to Sacks, “divides humanity into children of darkness and of light, all good among us but all evil in the others”.

When a section of Kenyans would commit evil just to prevent Odinga from being president, we see an outright refusal to accept the partially good intentions of others with whom, according to Thomas Melton, “we are unconsciously proclaiming our own malice, our own intolerance, our own lack of realism, our own ethical and political quackery.” This kind of dualism must be defeated if Kenya is to become a nation.

One way out of this is role reversal. Rabbi Sacks suggests: “The way we learn not to commit evil is to experience an event from the perspective of the victim. That is what (Biblical) Joseph is forcing his brothers to do. He educates them in otherness through role reversal.”

Joseph forces his brothers to recognise that just as a brother can be a stranger (when kept at a distance), so a stranger can turn out to be a brother. Cain is able to commit murder because he asks, “Am I my brothers’ keeper?” He refuses to feel the pain of Abel but cares only about his rejected offering. On the contrary, in showing that he is his brother’s keeper, Judah’s repentance redeems not only his own earlier sin but also Cain’s. No wonder then that the nation of Israel began in Egypt with slaves so that they could know from the inside what it feels like to be on the other side.

Going forward, let truth be the foundation upon which Kenya is built. History is replete with evidence that truth can be betrayed and systems can be manipulated in the service of oppression and injustice. This has been the story of Kenya.

But aren’t these the challenges also confronting the human family now, calling us to look beyond those dangers? The opposition needs to remain committed to good governance and resist half- measure application of democratic principles, individual rights and the rule of law. The government that calls on all to respect the Constitution must also be exemplary in adhering to the tenets of the Constitution. This is dealing with each other truthfully.

Addressing civil and political leaders and members of the diplomatic corps in the Presidential Palace in Prague on 26 September 2009, Pope Benedict XVI could have as well been addressing Kenya’s stalemate today when he said: “The thirst for truth, beauty, and goodness, implanted in all men and women by the Creator, is meant to draw people together in the quest for justice, freedom, and peace.” He questions what is more inhuman and destructive than the cynicism which would deny the grandeur of our human quest for truth, and the relativism that corrodes the very values which inspire the building of a united and fraternal world. It is imperative, therefore, to place confidence in our innate capacity to crave for and grasp the truth and allow this confidence to point us to work for the Kenya we want.

Our priority must be to pursue principle above pragmatism. To get there, we must admit that while pragmatism determines the greater part of politics, it must never be at the expense of moral principles.

Now, however, we need to also embrace the truth with all its ramifications. Kenyans have a capacity for doing right and upholding the principles of democracy, as demonstrated in the 2002 election and the referendum that yielded the 2010 Constitution. This will ensure an end to election theft. I doubt there is need for more laws. I also do not imagine that changing people at the helm of failing institutions like the IEBC, without a shift in attitude, will change the situation.

Our priority must be to pursue principle above pragmatism. To get there, we must admit that while pragmatism determines the greater part of politics, it must never be at the expense of moral principles. For the professional politician, judge, administrator of justice or manager of the country’s crucial institutions, this means the priority of conscience above mere expediency. This will not be without a cost. Cardinal Ratzinger warns: “To live by the priority of moral principle over pragmatism requires moral courage. To adhere to your (genuinely moral) principles, must bring you into conflict with the powers and principalities of this world.” And for politics to recover its sense of direction, argues Ratzinger, what is needed is the recovery and public recognition of those moral norms that are universally valid.

In the end, we need to pursue truth to its logical conclusion. Attempts to bridge the divide and solve the present crisis have focused on reconciliation. Needless to say, these have so far been futile, for want of honest mediators. The depth of the crisis transcends a simple reconciliation between President Kenyatta and Mr. Odinga. Reconciliation must be grounded in repentance, which means a complete change in attitude and behaviour. A role reversal would be the best way of entering the world of those with “no stake in the economy” and whose rights have been trampled again and again.

We must urgently move away from the path of apocalyptic politics and affirm, through reforms, the national institutions that accommodate us all. The day these conflicts are transformed into conciliation will be the beginning of our journey to becoming members of one family called Kenya.

Published by the good folks at The Elephant.

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