Alex Gitura - Separating the myths from the facts

Mutahi Ngunyi’s sentiments published on Sunday 6th June, 2010 cannot pass unchallenged.

He enumerated a few reasons why he would rather vote against the proposed draft constitution which were rather unconvincing to say the least and at most misleading.

The first reason he gave for voting ‘NO’ is because according to him ‘NO’ is for stability and ‘YES’ is for change.

He said the country is currently stable but forgot that this ‘stability’ came about after a coalition government was cobbled together by Kofi Annan’s team after the country went through unprecedented post election violence.

It was put up as a stop-gap measure to allow the government to institute reforms including coming up with a new constitution under Agenda 4.

As time has proven, the coalition government that was created under unusual circumstances has proven untenable because of the constant fighting for political power among the political partners and intrigues of trying to undermine each other.

Does Ngunyi want this kind of arrangement to continue in perpetuity every time we have an election? Because this is what will happen if we choose to retain the current constitution which upholds an imperial presidency without checks and balances which every politician would die to fight for.

Perhaps, he fears change just like the political elite and landed aristocrats of this country who fear that the proposed constitution will affect the status quo which has seen them benefit tremendously at the expense of the masses.

Secondly, his true colours as un apologetic tribalist came out when he said that if ‘YES’ wins, all credit will go to the PM, Raila Odinga and he will consolidate support and ascend to the presidency.

Pray, what is wrong if Raila Odinga or any other person ascends to the presidency if he is chosen by a popular mandate?

In any case, this constitution is not about Raila, Uhuru, Kalonzo or Ruto but for posterity.

Another reason that Mutahi will vote ‘NO’ is because under Article 143(4) the proposed constitution will lift presidential immunity against prosecution when a sitting president

engages his government in crimes considered grave under the Geneva conventions like Genocide, war crimes and crimes against humanity.

Mutahi would rather an imperial president immune from prosecution.

Finally, the reason he will vote NO’ is because he thinks majimbo breeds ethnic acrimony.

The devolved government in the proposed draft was a compromise from a third-tier-system; majimbo (regional) government which would have complete autonomy as is the case with federal system of government. This is perhaps what he had in mind.

The economic advantages of a devolved government inter alia is that it will facilitate decentralization of state organs, their functions and services from the capital Nairobi to

the counties.

For example, issuance of birth certificates, title deeds and other services can be done at the county level instead of one going to Nairobi wasting time and money doing so.

It would be good for those given forums to give their opinions not to use the same forum

to mislead others.

As one reader posed, Mutahi Ngunyi has two months to listen to his conscience before

casting his vote.

Gitura write on social and political issues

No one should be bombed in Kenya - For whatever reasons!

Caroline Mutoko, KISS FM breakfast show presenter has written an article on www.frankierants.com here relating to how the media handled the comments made by NO leaders after the Uhuru park grenade attack which has now left 6 dead and tens injured. She has also commented on the "lies" being spread by the NO campaigners.

It is all good what Caroline has said. BUT something is not adding up from Caroline's angle. I listened to her KISS show in the morning. She spent most of the morning condemning some of the comments made by NO church leaders last night after the attack especially so called Apostle Nga'ng'a of Neno evangelism who accused the YES team as the ones behind the attack and went ahead to curse whoever was behind the attack. This infuriated Caroline and she termed it as the height of incitement in her breakfast show and called upon the police to arrest the pastor. More sad is that KISS aired callers who turned the show into a NO bashing show almost to the extent of justifying the grenade attack.

Caroline was more angered by the claims made by the NO team than the fact that someone had the audacity to detonate 3 grenades in the midst of a Kenyan gathering. To me, the attack is so wrong, evil and diabolic and should be condemned in the strongest terms possible. No one should be bombed in Kenya! For whatever reasons. Whether they are mad, liars, rumour mongers, thieves or saints. Even the serial killer is enjoying police protection and has not been submitted to a firing squad.

This line of thinking is unfortunately being propagated even on the Internet. Justifying statements like "why did they advertise for a prayer rally and turn it into a NO rally?" Or why did they bring kids to a political rally? Or why did it end late in the night? Or why is the church spreading lies and propaganda about the new constitution? Or why is the church hating and inciting the muslims in regard to Kadhi courts?

No one should be bombed in Kenya - For whatever reasons! That should have been the bottom line and KISS FM presenters should have spent more time in their shows condemning the grenade attack if they are really passionate about Kenya. Caroline has the right to condemn any hate speech and inciteful statements but this morning, the condemnation of the attack itself did not come out strongly enough.

As for the Kenyan media, it is now clear that they are not as objective and professional and just like the rest of Kenyans, they also learnt no lessons from the 2007/8 post election violence, how sad! Some of these media houses in their love for reforms, YES and a new constitution by August by all means has turned their anger, insults, hate and frustration on the NO team leaders especially the church leaders.

Early in the year, the media owners/managers met and resolved to give a black out to any forces against the new constitution. This resolve had the church leaders struggle to get attention on the issues they felt were contentious and unacceptable to them and needed to be ironed out before a national referendum.

The church leaders to their advantage had the pulpit as a campaign platform every Sunday. Soon their voice could not be ignored. Unfortunately, by the time the church had caused enough commotion to attract attention, the referendum train had taken off.

To the disadvantage of the church leaders in the NO team, the designers of the referendum train saw no need to design a braking system, like what a good engineer would do. That however has not weakened the determination of the church leaders to bring down the draft constitution come August 4th. Coupled with the disorganized and biased civic education by COE and the arrogance of the YES team, this has confused many media houses who have thrown caution to the wind.

I digress. Caroline has access to media moguls in Kenya and should direct her media anger to akina Linus Gitahi, Wachira Waruru, Rose Kimotho, Jeff Koinange and Paul Melly of KTN. She has their ears. Kenyans believe she is aggressive enough to get the attention of these media owners and managers and have the TV and radio stations behave so as not to repeat the mistakes of 2007/8. If she can't take such a step, she is just like the rest of us who are listening, covering and airing comments made by every mad man in a suit.

Raila Odinga on Uhuru Park Blasts:

"It is not the mistake of the Intelligence forces that a prayer rally could have been converted into a political rally. What could the Intelligence do? Nothing! ...the rally apparently went beyond the prescribed 6pm time....let us stop speculating that it was the YES camp that carried out the attack to stop the NO camp or that it is the NO camp ostensibly to get sympathy votes."

Blast leaves 3 dead, 79 injured at a NO rally in Uhuru Park, Nairobi, Kenya

According to Citizen Sunday Live the Uhuru Park NO rally blast has claimed 3 lives and left 79 hospitalized at Kenyatta National Hospital and Nairobi Hospital. The NO Rally was led by various church leaders and MP and minister for higher education William Ruto. The rally was attended by thousands of faithfuls who have vowed to oppose the passing of the new constitution citing contentious issues like Kadhi Courts, Abortion and international law adoption clauses.

As the rally was ending in the evening, two blasts went off. The blasts are said to have been caused by grenades or other explosive devices that went off just near the front row where the audience was gathered. The front row is usually packed as it is nearer to the main dais. At the time of the blast a number of faithfuls had stepped forward for prayers and a number had already started streaming out of the rally. A stampede followed that added the number of injuries. The injured were rushed to Kenyatta National hospital.

The church leaders blamed the proponents of YES campaign as the ones behind the blasts. The NO campaign has been gaining ground in the past weeks and today's rally was a show of numbers and might by the church-led NO campaign.

The blast brings to the fore the issues of insecurity in Kenya, religious intolerance and political violence. It shows how fragile Kenya is irregardless of the post election violence that rocked the country after the disputed 2007 election. The referendum campaigns are bringing out pent up emotions in the Kenya populace that shows that Kenya as a country is still not far from the precipice that it slid into in 2008 despite the smokescreen that the grand coalition government is.

This comes 3 days after American vice president, Joe Biden, visit to Kenya. Biden pushed for the passage of the constitution in order for Kenya to enjoy profitable relationship with America and investment funding by Americans. It also comes after it was reported last week in the daily papers that USA president Barack Obama has warned NO proponents of American sanctions for being anti-reformists.

The NO campaign by the Kenyan clergy on the issue of Kadhi courts inclusion in the new constitution has angered the Muslim population. The church leaders cite such inclusion as discriminatory and an elevation of one religion by the state over other religions.

This is the second security incident this year in Nairobi, the capital city of Kenya. In January this year, Nairobi was the scene of demonstrations organized to push the government to release radical Jamaican Islamic preacher Abdulla al-Faisal. Scores were injured and several people died. A General Service Unit police officer was shot and injured by demonstrators who were armed. Demonstrators shouted slogans and donned flags associated with contraversial Somali Islamist al-shabaab militia.

Mutahi Ngunyi: Why MPs should stop the referendum

This is a letter to Members of Parliament. Greetings and a good Sunday! I write to you for one reason: You must stop the referendum. You must review the law that created the ‘‘rushed’’ reforms. This is our last chance at peace; maybe our last chance at a negotiated constitution. I am compelled by three considerations.

First, I will quote from a book about the ‘‘fall’’ of Lebanon. It is a ‘‘cookbook’’ on how to destroy nations. The book is entitled The Black Swan: The Impact of the Highly Improbable. And the author is Nassim Nicholas Taleb. Using history, he shows how civilisations and nations are extinguished. All you need is a moment of national blindness and a passion for an idea. Passion and blindness equal destruction. Then destruction acquires a life of its own. What started like a silly joke begins to burn and can burn for years to come. And this is what happened in Lebanon.

The adults told Mr Taleb that the war was “... going to end in a matter of days”. They therefore waited in hotel rooms in Cyprus, Greece and France for the war to end ‘‘tomorrow’’. It lasted 17 years. The same happened to Cuba. During the 1960s, the Cuban refugees in Miami lived with suitcases still half packed. They believed they would return in a ‘‘matter of days’’. They are still in Miami 50 years after the Castro revolution.

Mr Taleb’s point therefore is this: War is unpredictable. Even war that has ‘‘ended’’ can cook from the underground for years. And this is why I write to you as MPs.

The Peace Accord did not end our war. It was a ceasefire document. Instead of burying our differences dead, it buried them alive. Now they are boiling from the underground, simmering in the dark. And as they boil, we are in a state of national blindness. We are in a spell. But what is worse: We are both passionate and blind. This is why the referendum has generated nothing but heat. Only 10 per cent understand the constitution according to the polls.

The others have not read it; do not understand it, or are indifferent. They are passionate about it, but blind. If Mr Taleb is right, this is a recipe for war. I write to you therefore to ask a question: What is the point of having a new constitution and dividing the country? We are still at war. And the experiments in this draft can only add fuel to the fire.

Two, our country is invaded. Unofficially, we are now a Protectorate of America; an informal colony of President Obama. From Kofi Annan to Moreno-Ocampo; the visits by Hilary Clinton to Joe Biden, the trend is now clear. This is an army of occupation. And its mission is what Tanzanians would call ‘‘Ukoloni mamboleo’’ (neo-colonialism). You must therefore tell ‘‘cousin Obama’’ the following: Back off. His father was one of us. And as the ‘Nation of his Father’, we are a proud people. Very proud. You patronise us, we get violent. This is why the Biden trip was a disaster. We resisted the man, his polemics and his goodies. We will not pass the constitution to get American money. Not worth it! We will do it for our children and their children whether ‘‘cousin Obama’’ will be in power or not!

In sum, you must liberate us from this foreign naiveté. And you must do so by first asking the following: What is their interest in this constitution? What are they sneaking backdoors? These questions must be asked with two considerations in mind. The first refers to Article 2(6) of the draft. It translates all International Treaties we have signed into local law. This is a clever invasion without sending Mr Joe Biden. The second has to do with the rushed process of passing this draft. Why the rush? Remember that the ‘‘rushed reforms’’ came with Mr Annan. All his reforms, from the Waki List to the implementation of this draft, have been rushed. Why? You must stop this.

My last point regards the errors in the draft constitution. Some people have identified 93 errors, I have identified 101 errors. This makes the draft illegitimate by any standards. If it passes, these errors cannot be corrected administratively by the Attorney-General. In fact, it would be illegal for him to do so. To correct them, you will have to institute a process of minimum constitutional reforms. In one of the errors (Article 20(3)(b), you will need a referendum because it is in the Bill of Rights. My question to you therefore is this: why go on with a process that is faulty? Why give us a half-baked constitution and constipate us politically? Some of you purport to speak for Kenyans. And you have told us that it has taken 20 to 25 years to do this review process. But one university student told me that he is 26 years old.

He further told me that 65 per cent of the country is 25 years and below, while 73 per cent is below the age of 30. His observation therefore was this: If 65 pc of the country is below 25 years, those making the constitution for 25 years must be in the minority. In fact, he called them political dinosaurs. Worse still, if 73 pc of the country is below 30, none of them has been involved in this ‘‘romantic’’ struggle for a new constitution. This is, therefore, a struggle by dinosaurs, between dinosaurs, to produce a dinosaur constitution.

Back to the author from Lebanon, the country went to war. We did not resolve the reasons why. Now the war has gone underground. On the surface, the country has a passion for the constitution. But this passion is blind. To build an experimental constitution on a fragile peace is to invite war. You must therefore give us leadership by stopping the referendum. The principals will not do it. They are spell bound.

Only you can review the law that created these ‘‘rushed reforms’’. And if you do it, you will open up new avenues for dialogue and healing. But can you? My challenge goes to the cowardly GEMA MPs. You are “Yes” in the day, “No” in the night. This is your chance to be counted!

Mutahi Ngunyi is a political scientist with The Consulting House, a policy and security think-tank for the Great Lakes region, West and Southern Africa. Mutahi@myself.com

Jerry Okungu: Rating YES and NO popularity tragic

In my school days, the marks I scored in a class test or national examination were very important to me. Our teachers then could grade us in two ways; either mark our results out of ten or a hundred depending on the number of questions. Alternatively, the teacher would convert the scores into percentages.

In this arrangement, the person who consistently scored between 50% and 60% was a good and average student with nothing to write home about. Those that scored between 70% and 80% were considered promising and were likely to go far in their academic pursuits. However, those rare ones that scored between 85% and 100% were the darlings of hard working teachers and were guaranteed places either in high school or university, depending on the national examination they were sitting.

Conversely, those that were not intellectually endowed and constantly fell between 0% and 30% in their score sheets were considered unable to proceed beyond that segment of education system. They were encouraged to start considering other vocations such as subsistence farming, woodwork, masonry, tailoring or metal work.

The figures that have been coming out of opinion polls regarding the impending referendum have been following the same patterns we were used to in school. In my village, we had
two boys and one girl that always came last in our class. They always scored the lowest marks, sometimes 0% in all subjects but they soldiered on until the final exams weeded them out.

Of late the Green campaign team has been consistent, scoring above 50% but hardly soaring to the 70% mark. On the other hand, over the last three opinion polls, it was only in the last Synovate results that the Red corner marginally increased its ratings by a humble 3% to hit the 20% mark. This marginal gain for the Reds has also seen the Greens steadily decline from an all-time high of 64% to 57%. If this decline continues, the possibility of the referendum results being too close to call is real.

What this scenario brings to mind is the ugly memory of 2007 when pollsters predicted that the elections would be too close to call. And just like in 2007, the usual suspects have started claiming that the Green corner is planning to rig the referendum, a claim which if they persist with will most likely pollute the political atmosphere with the possibility of losers pouring out into the streets to riot.

So far this poor show by the Reds should be a cause for concern among the clergy hell-bent on denying Kenyans a new constitution.

Right now they may delude themselves that all the polls conducted by different firms have been doctored in favour of the Greens.

However, those were the same messages we kept hearing from our presidential candidates, some of them top clergy in 2007. They never changed the results.

Before these campaigns started, some leading clergy were thumbing their chests that they would mobilise 20 million Christians to scuttle the new constitution.

At that time I argued there are no 20 million Christian voters registered anywhere in Kenya to derail this process. And as it turned out all the voters that the IIEC could manage to register in 50 days were 14 million that has now gone down to 12 million after the vetting of the registers.

This figure is 8 million short of the Christian magic number. What is even more significant is that this 12 million number includes Christians, Muslims, Buddhists, Hindus, Hare Krishna, animists, traditional healers and people of no known faith.

If one looks at the Christian megaphones shouting themselves hoarse, the loudest of them all are the usual suspects that deafen our eardrums at every corner of the city and on our TV screens.

Their congregations look impressive indeed with all manner of miracles being performed. It will remain to be seen if indeed these miracles will turn the tables and deny Kenyans their hard earned constitution come August 4.

And this time, let my Christian clergy brothers and sisters not blame the media or even cash for losing the vote because they decided a long time ago to use our tithes for their campaigns.

Three media houses, two of them very influential have subtly thrown their weight behind the Red corner with one consistently conducting polls every night at prime time in which the Reds are always winning.

Another equally popular TV station is blatantly championing the Red cause because its owners are in the Red corner. The smaller local language radio station has not even bothered to hide its preference for the No team.

Okungu is a media consultant.

Mutahi Ngunyi: A choice between change and stability

Last week I was labelled an anti-reformist for saying a fat “No” to the draft law.

Allow me to put the record straight. Without a doubt, I am an anti-reformist. No apologies, no guess work, just anti-reforms. Besides, being anti-reforms is not a disease. And if it is, I am happily infected. I could be dead wrong on this.

But if I am, I do not choose to be right.

What I crave is “... change I can believe in”. Not change, because it is change. In fact, the change I see in this draft is best described by George Orwell in his fable The Animal Farm.

He talks of a Sugarcandy Mountain; the one we will get if we vote “Yes”. It is a place full of milk, honey and candy. A place where true reforms will happen.

And this is what James, a waiter at Village Market, craves for. He told me he is voting for reforms. After the draft, he sees himself going into business, getting out of poverty and growing fat. He believes that the Sugarcandy Mountain is coming.

But if you read The Animal Farm properly, this mountain was a lie. It never came; it never was. The “... more things changed, the more they remained the same”. And this is the shock we will experience on August 20 if we pass this law.

There is another thing. They say that the current constitution is bad. And if you vote “No”, you are voting for it. Both the assertions are right.

Yes, the current constitution is bad. And yes, I am voting “No” and I am voting for the current constitution.

Like my ‘‘anti-reformist’’ stand, this is not a disease; it is a choice. Between the current and the new constitution, I feel safer with the current.

It is not perfect. But the new one is not perfect either. If the bad things will be removed from the new one later, why can’t the good things be put in the current one later? It amounts to the same thing.

But this is not why I am voting for the current constitution. My vote is “No” because our choices are two. This referendum is a vote between change on the one hand, and stability on the other.

“Yes” is for Change; “No” is for stability. My choice is for stability. If the country is currently stable, why unsettle it with experiments in the name of change? Besides, whose change is this?

In my view, this constitution is a ‘‘Covenant of Darkness’’. Instead of liberating us, it will sink us deeper into national blindness.

This will become obvious only after we have passed it. And I have three reasons for saying so. The first has to do with the political intrigues if it passes.

Currently, the two principals are friends of convenience. If “Yes” wins, their true colours will show. Focus here must be on Mr Raila Odinga.

If “Yes” wins, all the credit will go to him. He will be our new hero. He must, therefore, consolidate support and ascend to the presidency in the shortest time possible.

He must do this before the ‘KKK’ regroups and regiments against him. And his best bet will be a snap election in November this year or thereabouts.

But is this possible? The new draft renegotiated the Peace Accord. While the Accord does not anticipate an election should a coalition partner pull out, the new draft does.

Mr Odinga can pull out in September after a ‘‘make shift’’ crisis and force an election in 60 days. This will be made even easier if The Hague suspects are ‘‘collected’’ around the same time. Between this razzmatazz and the stable status quo, which is worse?

The second aspect has to do with The Hague. And this point must worry the president.

Article 143 provides immunity to the president against any prosecutions. By extension, he is above the law.

However, 143(4) states that “... the immunity of the president ... shall not extend to a crime for which the president may be prosecuted under any treaty to which Kenya is party ...”

What this means is the following: Mr Ocampo can go for the president if the draft passes. But is this possible?

He told us that his focus will be on the Eldoret and Naivasha killings. And he further said that he will not be looking for the foot soldiers only.

The Waki commission further told us that the Naivasha killings were planned at top level. Is it possible that the president is targeted by ICC?

That this Article is carefully calibrated to fix him? What is the point of taking a load full of ‘‘earthlings’’ and ministers to The Hague? Is this all Mr Ocampo is looking for? Will he teach the world anything with this?

I doubt it. My hunch is that he is coming for big fish. And lifting of presidential immunity is the strongest signal yet.

The third aspect regards the implementation of the draft if it passes. And the year of concern is 2012. This is when we will implement it to the full.

The question to ask then is this: If we are afraid of 2012, will this draft provide a peaceful election? And the answer to this is a resounding “No”. Apart from its playful experiments, it has entrenched all the reasons why we fought.

With respect to presidential elections, it favours majority tribes. It means that the dominant tribes will dictate who becomes president under the 50-plus-one rule. This is one reason why we fought.

And as they do so, the majimbo elections will be taking place. The problem with majimbo is not the system, but the ethnic acrimony it breeds.

If people disagree on the presidential candidate, the tempers will be unleashed at the level of majimbo. And this is why I am voting no; why I stand to be counted as an ‘‘anti-reformist’’.

Now a word to the churches over the opinion poll results. My Sunday school teacher used to tell us this: ‘‘God is too slow, but He is never late!” You will catch up.

mutahi@myself.com