Special report: The foreign aid LSK Footprints: How game is changing: these are the Jomo Kenyatta stamped opportunities for Africa out oversight The Nairobi Law Monthly Vol 12 • Issue No. 5 | September 2020 Ksh350 • Tsh5,570 • Ush10,450 CIVIL WAR Absurdity of a state against its own people The Nairobi Law Monthly 2 • September 2020 September 2020 Contents Vol 12 • Issue 5 Publisher: Ahmednasir Abdullahi Managing Editor: Kevin Motaroki Cover Story Inside Regulars Associate Editor: David Wanjala Consulting Art Director: 2 | LEADER Andrew Muchira 4 | OPENING STATEMENT Creative Design: 6 | LETTERS Denet Odhiambo From separation 6 | BRIEFING Staff Writers to delegation of Antony Mutunga 6-8 | NEWS Shadrack Muyesu powers P.32 Education emergency’ as third of David Onjili world’s children lack remote learning Victor Adar MPs push to have knotty gender Contributors: rule invalidated Prof John Harbeson Coalition launches $100 million PPE Dr Tom Odhiambo initiative for Africa’s community Barrack Muluka health workers Kibe Mungai Joel Okwemba Tioko Ekiru 10 | REVIEW Newton Arori Challenges to sound constitutional Special Investigative implementation Department: Payton Mathau Auditing the Bill of Rights under the Constitution, 2010 Business Executive: Why do people participate in Roseline Okayo election violence? Insights from Photography: Kenya’s 2007 elections Victor Adar Kenya is struggling to deliver justice NLM Library online: what needs to be done Courtesy Opening Administration: 20 | SPECIAL REPORT Samah Hassan Statement: Shadow war Fatma Yusuf The foreign aid game is changing: opportunities for Africa Printing: Africa’s most important heritage Emirates Printing Press, LLC, sites could be permanently lost to Dubai, UAE climate change Distribution: Internet shutdowns threaten The Newspoint – TNP democracy 36 | BUSINESS Leveraging the employment potential of industries without smokestacks A house Kenya-US free trade talks are divided: underway: what Nairobi must get Kenya’s political right from start Data analytics is transforming The Nairobi Law Monthly may not be copied madhouse and or transmitted or stored in any way or Democratic supply chain management form, electronically or otherwise, without the prior and written consent of the publisher. backsliding The Nairobi Law Monthly is published at 50 | BLACK LETTER LAW Mayfair Office Suites, Parklands Road, by forensics The Nairobi Law Monthly Limited, Box P.28 Kenya: a constitutional crisis grows 57731 – 00200, and Telephone 0735 701702, P.4 0715 061658. 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All rights are reserved. www.nairobilawmonthly.com integrating gender into economic constraints analyses www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 1 It is possible for Kenya to move Editorial forward, but citizens must exercise their constitutional rights and the right to self-determination to enforce a free and equal society. implementation, including Parliament On the constitution: let’s and constitutional commissions. We must also address our failure to develop policies, based on robust analysis get our priorities right for of the process of implementation and the challenges we have experienced so far, to guide implementation. the next decade The emasculation of parliament has become significant as the Executive seeks to roll back some gains in the constitution tories of democracy and sustain- can still deliver if we become deliberate through ordinary legislation, and an assault ability can be told in many other about its implementation. on democracy through disregard of court ways too; ones that connect The Building Bridges Initiative (BBI), orders, arbitrary orders such as the one S much more deeply with human which has been tailored to support amend- directing that hiring of external lawyers by values. Consider this tale from India: ments, has identified a nine-point agenda ministries and government agencies have Ten years ago, sought to change their but most of those have nothing to do with to be approved by the Attorney General. social and political fortunes when they pro- implementation. None justify tinkering Some laws that the National Assembly mulgated a new Constitution. In their new with the document that has been both has passed have not been in line with governance contract, they recalibrated the source of national pride and chagrin. the letter and spirit of the Constitution. governance, to restore the power of the Our present focus should be on im- Institutional conflicts over mandate, and people, ensure dignity for all through a proving the quality of constitutionalism. general turf wars at different levels of comprehensive human rights Bill, and to The last decade has seen a fundamental government, have characterized imple- hold governments to account. increase in the levels of awareness on mentation thus far. There are vary perspectives on what the letter and content of the document. progress the country has made in the last Unacceptable culture decade since august 2010. What Kenyans A culture of constitutionalism In a brief ten years, the country cannot be agree on is that the job of implementing It is important that citizens and State embroiled in conversation about constitu- the constitution is an ongoing endeavour. agencies inculcate a culture of constitu- tional change. President Uhuru Kenyatta They also agree that we haven’t done the tionalism, to ensure we implement the and his Handshake ally Raila Odinga are best job about it. Instructively, we still charter in letter and spirit. pushing for amendments seen to be geared bear the yoke of bad governance. We must also work to strengthen the towards earning and entrenching them in institutions tasked with championing power for the foreseeable future. Curtailed at every bend While there exist critical issues exist that The 2010 Constitution was the outcome require review, the approach employed of pain, sweat and sacrifice. It was borne Kenya fared relatively well towards that end is unacceptable because out of sheer will and tenacity. Curtailed by sub-Saharan African it appears to favour the political elite to at every bend, it has also not run its full standards in that the the exclusion of the citizenry. cycle Certain key provisions have not been region declined on all 25 It is possible for Kenya to move for- effected, partly owing to their sometimes foundational indicators ward, but citizens must exercise their idealistic slant, and partly because of except corruption control at constitutional rights and the right to self- political compromises. a low 1.3 out of 4, freedom to determination to enforce a free and equal While there are discussions about hold property without undue society as provided in the Constitution of amending the charter, on the basis that it is interference, and freedom of Kenya 2010 — a society where the rule of a living document that must continuously marriage and family size (1.8 law is the standard to which all institutions be adjusted to reflect realities, the major- and 1.4 of 4 respectively. and persons are held. ( ity of Kenyans feel that the Constitution The Nairobi Law Monthly 2 • September 2020 SPECIAL REPORT: Idling fees as EXCLUSIVE INTERVIEWS WITH DCI KINOTI AND DPP HAJI: the new frontierUhuru’s in graftgraft - gladiators focus on offer insights into their work ethic, PUNISHING JUDICIARY? NSSF, Kenyathreats Pipeline to the& KQ Kenyan P.31 state and the honour of public office Parliament’s budget coup and other omens P.12 The Nairobi Law Monthly The Nairobi LawVol 10 • IssueMonthly No. 06 | August 2018 Ksh350 • Tsh5,570 • Ush10,450 Vol 10 • Issue No. 07 | September 2018 Ksh350 • Tsh5,570 • Ush10,450 RESETTING THE CLOCK STATE CAPTURE THE RAI REPUBLIC GET IT ON PRINT •DESKTOP • MOBILE Take advantage, subscribe today and receive the following benefits: • Get your copy delivered to your door step • Full access to nairobilawmonthly.com • Unmissable Nairobi Law Monthly special reports and exposé www.nairobilawmonthly.com The Nairobi Law0715 Monthly 061 658 September 2020 • 3 Opening Statement with Prof John Harbeson RECESSION Democratic backsliding or the last fifteen years, de- late 90s, peaceful political competition mocracy has been in decline metastasized into violent conflict in worldwide in the opinion of fragile nascent democracies. Preoc- F most close observers of demo- cupation with elections that took place cratic practice. With the end of the Cold at the expense of strengthening other War until about 2005, there occurred a important dimensions of democracy, rising arc of democratic progress, most e.g,, the rule of law, has been a factor. notably in the Global South countries. Growing economic competition from In sub-Saharan Africa, eastern Europe China and other emerging economies and elsewhere, dictators were no lon- and a focus on counterterrorism have ger as coddled and propped up by the sidelined international support for de- principal Cold War adversaries, the mocratization. United States and the Soviet Union.