Saturday, March 30, 2013

A Supreme Slap on the Kenyan People

 A Digital Essay by Onyango Oloo

The Supreme Court has decided.

It took them less than ten minutes, or so it seemed.

Uhuru Kenyatta and William Ruto have been validly elected as President and Deputy President of Kenya. The Jubilee Coalition can go ahead and form the next government and rule Kenya for the next five years.

In my opinion, it is a defeat for Kenya.

It is a defeat for all Kenyans, especially those millions who lined up for hours upon hours,  waiting for their chance to cast a vote for president,  governor,senator, national assembly member, women’s representative and ward representative.

It is a defeat for the rule of law.

It is a defeat for the truth.  
It is a defeat for justice.

It is a  Pyrrhic victory  for Uhuru Kenyatta, who now has the challenge of ruling a divided Kenya, lacking national and moral legitimacy.

Those of us who are patriots and democrats still stand in solidarity with  Raila Odinga, Gladwell Otieno, Zahid Rajan and their lawyers who have been vindicated in their claims that the IEBC bungled the elections.

It is regrettable that such a historic ruling touching so closely on our hard fought democratic gains had to be delivered in such a taut ambience with the Supreme Court judges, litigants and their lawyers, literally under occupation from a phalanx of robocops on horse back, totting assault rifles and walkie talkies taking us back to the televised images of Kibaki’s infamous 2007 civilian putsch when terrified journalists, observers and political party agents were forced out of the Kenyatta International Conference Centre at the tip of menacing bayonets, amidst a repressive clampdown and crackdown on the media at the diktat of the former internal security minister now retired and in eternal repose, somewhere in heaven, if not hell.

Here are  some of the tweets  Kenyans were sharing as they awaited the decision:

Dr Willy M Mutunga ‏@WMutunga 11 Mar[/b]

@pkeruya. You forget that that power given to 6 of us is derived from 40 million Kenyans, not just those who voted!

Kenya Govt Spokesman Kenya Govt Spokesman ‏@SpokesmanKE 17m

Security around Supreme Court building tight:

Vincent Chepkwony ‏@vincechepkwony 58s

GSU heavily present along Mbagathi way! Do they know what we don't?

aMACus OTANIae ‏@MacOtani 10m

Ati the Supreme Court has been sealed off with a "CRIME SCENE DO NOT CROSS" tape.....crime gani tena jamaneni? #SwalaNyeti

Dennis Onsarigo Dennis Onsarigo ‏@Donsarigo 1m

I insist we love this country so much we can't destroy it. Kindly stop preaching peace and preach patriotism!!!!!!

Isaac Ongiri ‏@Ongiri2 3m

PM Raila Odinga to follow Supreme Court ruling from his office at Harambee Avenue at 3.30 pm.

Michael Mumo ‏@m_mumo 8m

Tight security around Supreme Court building

DAVID OHITO ‏@ohitoaol 4m

I went to buy petr[i]ol in a bottle to clean my equipment at home but was turned away Reason: I could turn into a bomb!

Some Six People ‏@KohadhaRoy 7m

The amount of security within and around #SupremeCourt will make one think that a Coup is about to take place!

Rob N Jillo ‏@robjillo 14m

CITY Hall Way, section of Wabera Street barricaded by GSU personnel as the country awaits ruling on Raila’s petition by the Supreme Court

Wanjikũ™ Revolution ‏@WanjikuRevolt 5m

RT "@agutamonda A government scared of its own people to the extent of mobilizing heavily armed security for itself is illegitimate."

EssentialAfrica ‏@essentialafrica 22m

RT @kelvinnews: Road outside #Kenya's Supreme Court closed off with tape that says 'Crime Scene Do Not Cross'.....

SENATOR MURKOMEN ‏@kipmurkomen 15m

The security around Supreme Court is too tight.

 Martin Muroki ‏@OleMartinezM 16

@kipmurkomen This thing should just come and we move on

Philip Warutere Philip Warutere ‏@pstwarutere 13m

@kipmurkomen tight security is meant to stop @UKenyatta and @RailaOdinga from a physical brawl outside SCORK otherwise Kenyans are peaceful.

Rodgers Esekon Rodgers Esekon ‏@ngunyi_wannabe 10m

Some powerful men can buy,threaten #theSixPeople for justice @kipmurkomen

philemon kandie philemon kandie ‏@philemonkandie 6m

kipmurkomen yeah,hooliganism has no place.

isaac tuei ‏@iktuei 21m

Bensouda rejects Uhuru, Ruto video link appearances  #KenyaDecides #ICC

Tribe 42 Tribe 42 ‏@CrazyKenyan_ 4m

    >> RT @makodingo #nw Nikita. Alert me when the GSU go back to whatever it is they do when they're not intimidating Kenyans

joe wamiti ‏@joewamiti123 6m

@WanjikuRevolt @WMutunga

 i trust you have the will of the people of kenya in heart.

frederick okango ‏@fokango 6m

You are all reminded that In a democracy, dissent is an act of faith. #PresidentialPetition

Mutisya Leonard ‏@mutisyal 17 Mar

The KE media's self retraint reveals a Society terrified by its own capacity for violence. -Michela Wrong #KeElections13 #MediaCredibility

Binyavanga Wainaina ‏@BinyavangaW 51s

whatever happens this afternoon, we move forward painfully into a pimply and promising adolescence. Lets manage these hormones well.

For the moment, the supporters of CORD can cite the many feathers in their caps:  the Supreme Court in the scrutiny establishing the many anomalies, illegalities and blatant flaws, which to use a word popularized in Kenyan circles  by the erudite Ms. Kethi, irregularities which “vitiated” any results alleging that Uhuru Kenyatta “won” the March 4 Presidential elections in Kenya.

 To quote from the blog Petition Leaks:

 1. Court ordered re-tallying of 22 polling stations [they are part of the disputed stations] . This is CORD’s Win No. 1
2. Court ordered scrutiny of all Forms 34 and 36. This is CORD’s Win no. 2
3. Oraro, Kilonzo & their teams provided overwhelming, incontrovertible and convincing evidence and arguments showing fraud and the fact that Uhuru never met ther threshhold of 50%+1.  This is CORD’s win no. 3
4. IEBC lawyers basically confirmed veracity of Oraro’s and Kilonzo’s arguments (multiple registers, secret register, alterations to register after Feb 18, verification in absence of party agents, undisclosed contract with Kencall server and conflict of interest, etc). Yet those things are illegal. This is CORD’s win no. 4
 5. Ahmednasir (for Isaack Hassan) attacked Raila, demeaned colleagues, lectured Judges and stressed that they exercise Judicial restraint. Confirmed election theft but said: “in every election votes are stolen” . An indicator, they sense or may believe Judges have been persuaded by Oraro-Kilonzo arguments. This is CORD’s win no. 5
 6. AG Githu Muigai’s spirited canvassing for the IEBC when its lawyers failed. AG specifically urged the Judges to go beyond the requirement for ‘proof beyond reasonable doubt’, dissuading them from nulifying election was a pointer he too believes Oraro-Kilonzo team have persuaded the Judges. This is CORD’s win no. 6.
 7. Argument and body language of maestro lawyer Ngatia. ‘Introducing’ AG’s desire to speak first because he is busy to which Judge quipped :”I thought the AG  was a friend of the Court…?”. His video but no punch. They did not persuade the Judges in the Court. My reading is there is panic. This is CORD’s win no. 7.
 Furthermore, Judges reprimanded lawyers who were bashing the petitioner was also interesting. The remark: ‘You are speaking like your clients’. Interesting.

Matters raised in the Raila Odinga and AFRICOG  petitions aside,  let us recollect the words of Chinua Achebe, the great African sage who rejoined our ancestors a few days ago:

Needless to say, we do have our own sins and blasphemies recorded against our name. If were God, I would regard as the very worst of our existence| for whatever reason/of racial inferiority. It is too late in the day to get worked up about it and blame others,much as they may deserve such blame and condemnation. What we need to do look back and and try to fin out where we went wrong, where the rain began to beat us.

If, as Kenyans, we start retracing where the political rains began to beat us as far as the contested March 2013 elections are concerned, we must look beyond Issaack Hassan, beyond Oswago, beyond Form 34 and beyond Form 36. We must  look beyond Ken Call, beyond BVR and beyond BVI.

Although one could go back to 1963 or 1978; although we could zoom back to the Bomas Conference, I want to fast forward to 2009.

The Committee of Experts put out a call then entitled Invitation for Proposals on Contentious Issues.
Under bullet 1.4 of that document, they posed the  following question as regards the  Executive:

(i)            What should be the relationship between Parliament  and the Executive be/ should there be a Presidential system with a President and Cabinet who are not members of parliament. In a Presidential system the President is directly elected by the people and is Head of State and Head of Government, with a Vice President as running mate.

(ii) Should  there be a Parliamentary System with the Prime Minister as head of the Executive (Government) chosen from Parliament? In a parliamentary system, the power to govern derives from parliament and the Prime Minister is appointed from a political party or coalition of parties that has the majority of seats in Parliament. The Prime Minister usually appoints the Cabinet from  within Parliament. There may be a ceremonial President as representative Head of State.

(iii) Should there be a “mixed” or “hybrid” system with a President and Prime Minister sharing  power? How should this power be shared? Such “mixed” or “hybrid” systems vary on the extent to which executive power is shared between the President and the Prime Minister.

(iv) Whatever system is chosen what are the best ways of ensuring that:

All Kenyan people and communities are properly represented and served?
The Executive is properly accountable?
Heeding to the above invitation by the Committee of Experts, here is an extensive excerpt from the memo that ODM submitted:


    The Orange Democratic Movement (ODM) reaffirms these commitments and states in this Memorandum as follows:

    1. The Executive

    a) Based on Kenya's political system which is a multiparty system
    b) ODM endorses a parliamentary system
    C) Separate function of State and Government
    d) Ensure Parliamentary system allows Kenyans to elect their leaders. Issue of sovereignty must not be left out.
    e) Issues of Parliamentary system will be refined at a later date.

    2. Devolution

    a) Three levels of government: National, Regional and District
    b) Regions will be 14 in number as in the Bomas Draft. All districts should be made into Constituencies. These will be called Counties for purposes of service delivery. Locations will be building blocks of Counties as units of service delivery
    C) All Constituencies created by the Boundaries Commission will become districts
    d) Every officer posted to the district must report to the elected leader at the District or County level.

    3. Senate

    a) Will be a chamber for regional representation. Number to 42
    b) Each Region will send an equal number of representatives to the Senate
    C) Number of representatives will be three one of which must be from each gender
    d) Senators should be delegates who carry the decisions of regions taken at the local level and cannot be compromised
    e) Elections to the regional assemblies to be by universal suffrage.



The Orange Democratic Movement (ODM) was born out of the struggle for a new constitutional dispensation for Kenya. From its very inception, the creation of a new, transparent and accountable institutional arrangement for Kenya has been at the heart of ODM's vision for this nation. Now that the country has once again embarked on the process of trying to complete constitution-making, ODM wishes to make proposals on what it considers a good Constitution for the country. These proposals focus more on the areas that were considered contentious and others that may require reconsideration given the changes that have taken place since the last referendum on the constitution. In making its proposals and recommendations, ODM would like to remain faithful to the Bomas Draft constitution since this Draft emanated from the people of Kenya and was arrived at after very intense and well considered negotiations among the people of Kenya.

ACKNOWLEDGING the Supremacy of the Almighty God of all creation and the Constitution of the Republic of Kenya:

RECALLING that the Orange Democratic Movement has been the pioneer Party in the reform agenda:

AND IS COMMITTED to the dispensation of a new Constitution:

RECOGNIZING that the people of Kenya want a people driven Constitution and that their aspirations are for a Government based on freedom, democracy, social justice and the rule of law:

PROUD of our ethnic, cultural and religious diversity and determined to live in peace and unity as one indivisible sovereign nation:

EXERCISING our sovereign and inalienable right to determine the form or governance of our Country:

The Orange Democratic Movement (ODM) reaffirms these commitments and states in this Memorandum as follows:

The Executive

ODM proposes a pure parliamentary system based on the Bomas Draft constitution. There are two types of parliamentary systems. One fuses the offices of head of state and head of government in to one office held by one person. The South African system in which the President is the leader of the majority party in the National Assembly and is elected to that office by the members of the National Assembly is the best example of this kind of parliamentary system. The second type maintains a certain measure of duality at the top; with the offices of head of state and head of government being separated and held by two different persons. In this case the office of head of state is normally ceremonial as the executive power and authority of running government is normally vested in and exercised by the head of government. The head of government normally executes the affairs and functions of government in the name of the people. As such, it is the head of state who, formally signs and ascents to bills and ceremonially effects decisions of the head of government and his or her Council of Ministers. The foundation of the later type of parliamentary system is the West Minister model under which the Monarch serves as a ceremonial head of state while the Prime Minister serves as the head of government. In this system, once a political party wins majority seats in parliament, the Monarch invites the leader of that party to form a government. The countries that have successfully borrowed from this system are Canada, India and Germany. In Canada, for instance, a ceremonial Governor-General is the representative of the Queen in her capacity as head of state while a Prime Minister serves as head of Government. In Germany, on the other hand, a ceremonial President serves as head of state and a Chancellor serves as head of Government.

One of the major distinguishing factors of the West minister type of parliamentary system is that the ceremonial head of state is normally not elected through universal adult suffrage. The head of state can be a hereditary Monarch as in the case of the United Kingdom; or a ceremonial President elected by the legislature, as in the case of India, Germany and Israel.

The Bomas Draft Constitution proposed a dual executive leaning more to the parliamentary system rather than the presidential system. Article 172 of the Bomas Draft creates an executive Prime Minister who is described as the head of government. The other articles, however, require the Prime Minister to share Government functions with a president who is elected by universal adult suffrage. So as to remain faithful to the Bomas Draft, ODM recommends a pure parliamentary system with a dual arrangement at the top separating the head of state from the head of government a long the lines of the German and Indian examples. There should be a President who is a head of State and a Prime Minister who is a head of government.


In a parliamentary system founded on duality at the top, the division of functions between the head of state and the head of government is based on the concept of state functions and government functions. Whereas the head of state performs state functions, the head of government performs government functions. Furthermore, the head of state performs his state functions upon the advice of the government through the head of government. In this connection state functions may be identified as the state opening of parliament; representing the country in its international relations by accrediting and receiving envoys and ambassadors; and signing treaties. The exercise of the prerogative of mercy is also listed as a state function to be performed by the head of state on the recommendation of an independent pardons and clemency board. Ideally, the actual nomination of the envoys and ambassadors is done by the head of government while the head of state does the formal signing of the instruments of appointment as a matter of course. Similarly, the negotiation of treaties is done by the government with the approval of the legislature while the head of state simply does the formal signing.

On the other hand, government functions are identified as the formulation and determination of general government policy and guidelines; the implementation of government policy; and the actual running of government affairs.

One area that normally causes a bit of confusion is the command of the armed forces. Ideally, the external defence of the country, which is the main function of the armed forces, is a function of the government, and not of the state. As such, the command of the armed forces should be a function of the government. Indeed, in Germany, article 65a vests the command of the armed forces in the government through the Minister of Defence. In other parliamentary systems, the command of the forces may be vested in the head of state acting on the advice of the government subject to parliamentary approval.

ODM recommends a parliamentary system based upon the Bomas Draft Constitution. The President should be the head of state while the Prime Minister should be the head of government. But to be able to give effect to the principles discussed above, ODM recommends certain changes to chapter twelve of the draft. For instance, article 151 should be redrafted to vest the executive authority of the Republic in the Prime Minister and his Council of Ministers. Article 152 should be redrafted to provide for a President who is a head of state and who performs the function of commanding the armed or defence forces but on the advice of the government through the National Security Council. Like in the German system, the President may not be a member of the government nor the legislature both at the national and devolved levels of government. The president should play the formal role of representing the country in its international relations. He should be the one who formally signs treaties concluded by the government with other states. He should also be the one who formally accredits and receives envoys and ambassadors. He should have the power to exercise the prerogative of mercy upon the recommendations of an independent pardons and clemency board. Similarly, as in the case of Germany, a new clause should be introduced requiring that to have validity, all orders, directives and appointments made by the President be countersigned by the Prime Minister.


In parliamentary, systems the head of government, is normally the leader of a political party that wins majority seats in parliament. He/She is elected by universal adult suffrage through the election of his political party as the majority party in parliament. Once his party wins the majority, he becomes entitled to form the government. In some systems such as the British one, he is normally asked by the monarch as head of state to forma government. In others, he is normally elected by the legislature before being asked to form a government. In Germany, for instance, the Chancellor is elected by the Bundestag; whereupon the President formally appoints him to the office of Chancellor and invites him or her to form a government. In South Africa, the President who is both head of state and government, is elected by the National Assembly. In almost all the cases, the leader of the majority party easily ends up winning the votes of the members of the legislature to become the head of government.

On the other hand, the general rule is that the head of state is normally not elected by universal adult suffrage. In systems such as the British one, he or she is a hereditary Monarch. In Canada, he or she is appointed to office by the government but acts as the representative of the Monarch. In Germany and India however, he is elected to office by some kind of electoral college. In Germany, by the President is elected by a Federal Convention by consesus. The Federal Convention comprises of the members of the Bundestag and an equal number of members elected by the regional (Land) parliaments on the basis of proportional representation. In India on the other hand, the President is elected by an electoral college consisting of the elected members of both houses of the Parliament and the elected members of the State Legislative Assemblies. The election is held in accordance with the system of proportional representation by means of "Single Transferable Vote" method. Each elector casts a different number of votes. The general principle is that the total number of votes cast by Members of Parliament equals the total number of votes cast by State Legislators. The most important thing to note about the two countries is that efforts are made to create a balance between the role played in the election of the Head of State, by the national level of government through Parliament and that played by the governments or parliaments of the devolved levels of government. Equal participation by the two levels of government is emphasized.

Taking these examples into account, ODM proposes that the president be elected by an electoral college that has equal representation from the national and regional levels of government. The Electoral College should comprise the members of the national Assembly, the members of the Senate and a number of electors elected by the regional assemblies. The total number of the Senators and the regional electors shall be equal to the number of the members of the national assembly. The regional electors must be distributed to all regions on an equal basis bearing in mind gender and disabilities. The intention is to have a president who can represent the national interest.

Eventually, ODM retreated from this “Parliamentary System” position during the Naivasha horse trading between PNU and the ODM (riven with internal conflicts between its feuding Ruto and Raila factions) which ended up watering down the Harmonized Draft Constitution, transforming it to the  so called “Revised” Harmonized Draft which was what was put to Kenyans during the August 2010 Referendum.

Dr. Job Obonyo, a respected Washington based Kenyan physician, political activist and public intellectual, one of the most incisive and prolific of Kenyan bloggers received   correspondence from one of his trusted Kenyan contacts which he decided to share with his readers on the Jukwaa discussion platform on February 16, 2010:

Post by job on Feb 16, 2010, 10:26pm

For full disclosure, I received this document by e-mail and only edited portions of it to fit standards of this board.


A closer look at the draft constitution crafted by the Parliamentary Select Committee (PSC) in Naivasha reveals a document that will forever impact Rift Valley Province in profound ways.

This was a document whose major tenets were spearheaded by a newfound friendship of strange bedfellows, one an angry and vengeful Agriculture Minister, William Ruto, and another, a calculating and ambitious Finance Minister, Uhuru Kenyatta, producing a 'compromise blueprint' that needs to be examined.

In the resulting deal, one side totally compromised on principles and aspirations held by their constituents, while elites from the other side got all they have long desired since the pre-independence period without breaking a sweat.

It is quite probable that most Rift Valley residents, disillusioned by recent events in government, have lost focus on examining the proposed draft constitution.

It's also possible that Ruto has capitalized on the rifts created by the handling of Mau, PEV and efforts against corruption, to claim role of sole defender of Rift Valley interests, as a political bargaining chip which he appears to be using for his own personal interest rather than his community's.


ODM walked into this devolution debate quite divided and without joint purpose and the result is that the earlier proposed 2nd-tier of regional government will be no more. Rift Valley Province (as an administrative unit) or region (as a devolution unit) and it's sense of unity will be no more as soon as the draft passes.

The era of small and weak counties has arrived as there shall be no more Rift Valley region or province - as will be the case with all previously existing provinces, or regions proposed in either the Bomas draft or CoE draft.

With just a stroke, the Naivasha deal sliced and diced (in divide-and-rule fashion), the cosmopolitan province into many small, distinct and weak counties only reporting to the strong national government.

Nobody can question the long-held desire of Rift Valley residents to have a majimbo (quasi-federal) system which guarantees self-governance at local level with oversight of local resources including land and which is capable of providing checks and balances to the exercise of power at the national level.

Rift Valley’s forefathers in KADU including Jean Marie Seroney, Taita Toweet, and Daniel Moi, ensured this demand was entrenched in the Lancaster Constitution talks in London before independence.

However, after independence, President Jomo Kenyatta refused to allocate funds to the regional governments, and abolished them altogether in 1964, with disastrous consequences in the Rift Valley.

How did Kenyatta navigate and tame possible backlash from that unilateral assault on the constitution?

Kenyatta's handlers were calculating enough to lure Moi into a political pact. As Kenyatta dismantled the constitutionally created Jimbos, an interesting but significant political development - the formation of a new political alliance - was happening in the background.

Moi secretly negotiated a background deal with Kenyatta and essentially plotted an internal coup in KADU with express plans to form an alliance with KANU.

Moi's compromise card was facilitating the smooth dropping of the majimbo system, strongly favoured by his Rift Valley constituents, especially the Kipsigis and Nandi. In exchange, Moi was promised personal promotion up the political ladder.

Essentially it was an exchange of community aspirations for one individual's personal gain. A similar deal may be cooking today.

From the pact, Moi led a walkout from KADU into Kenyatta’s KANU, which signaled the end of the pro-majimbo party. The majimbo debate was slowly defeated and halted from then on.

That was the beginning of Rift Valley resources (especially land) being plundered at will from the center with people’s voices at the grassroots totally drowned out. Jean Marie Seroney’s fears were being confirmed.

It is this background that motivated Rift Valley residents to begin another protracted campaign to restore the principle of devolution back into the constitution.

In 2005, Rift Valley residents rejected the Wako draft constitution precisely because it was a blueprint perpetuating a continuation of the same post-independence ideology against devolution started by Kenyatta in 1963.

As early as independence, it was clear that Kenyatta's cronies of elites were strongly against a three-tier devolution with national, regional and county governments. Their position currently manifesting through views held by Central Province MPs, has not changed today.

Kenya has now been presented with another great opportunity to write a new constitution.

Rift Valley was recently represented at the Naivasha PSC negotiations by Agriculture Minister Hon. William Ruto and Chepalungu MP Hon. Isaac Ruto among others. Representing the Central elites was Uhuru Kenyatta, Jeremiah Kioni and others, even tagging along Uhuru's cousin Beth Mugo as a very interested observer.

Let us look at what they came up with for devolution.

From the Committee of Experts (COE) revised draft constitution which contained a national government, 8 regional governments, and 47 county governments, the PSC started by first REMOVING THE 8 ‘JIMBOs’ (regional governments) as proposed by the PNU coalition of parties.

That was a swift act quite reminiscent of Jomo Kenyatta's 1964 action.

The elimination of the regional tier WILL DENY the small and weak counties an essential forum for co-ordination, and protection from undermining by the strong national government.

This means, without regions, and without administrative provinces, Rift Valley, either as a governance or administrative unit will be no more. There shall only be a national government and county governments (two tiers) entrenched in the constitution.

If you closely reflect what this means for instance at the South Rift, it means that majority of the Kipsigis will be sliced and diced into three counties, with some having their voices drowned out in Narok County, some dominated in Nakuru County, and the remaining having their say in Kericho district. The divide-and-rule dictum becomes apparent. The removal of a sense of communal unity becomes real.

On top of that, these county governments like Kericho will be weak and exposed to undermining by the national government at Nairobi because there will be no regional government to shield them.

The Ruto-Kenyatta driven PSC also retained in their proposed draft, administrators like DCs, Dos and Chiefs who will still ensure that the national government remains effectively in charge of local governance within the already weak counties. Thus locals will have undermined say over local governance and resources.

If William Ruto wants to soon face his constituents with this arrangement he helped Kenyatta's PSC allies chart, selling it as devolution, that would be the biggest fairy tale ever told.

Essentially, by removing the regional tier, which protects county governments, and retaining administrators, meaningful devolution has been killed yet again.

Any curious and keen observer will note that these ‘devolution’ proposals are essentially the same ones forwarded by the Wako draft constitution that were rejected in 2005.

In killing real devolution, the PSC also did something significant. The all-important independent Commission on Revenue Allocation with the mandate of determining the basis of sharing revenue from national resources was struck out, and its role retained by Treasury in Nairobi.

That was the clearest statement from the PSC that there were basically no real defenders for devolution in that Naivasha get-together.

Treasury is part of the National government and it is not expected to fairly and justly divide resources between the various levels of government. Thus instead of a national resource allocating mechanism, the powerful President, and whoever he/she appoints Finance Minister, will retain the powers to distribute resources to counties. In any way you want to look at it, this does not pass for change.

This is definitely not what Rift Valley has been clamoring for and it would be unbelievable to any lay Rift Valley resident that Senior Rift Valley leaders were sitting in these PSC deliberations that came up with these proposals.

That is until folks remember the history of Moi, Kenyatta and Majimbo.

History has repeated itself and Rift Valley peoples' aspirations have been thrown out the window in exchange for personal promises for a single individual.


Now that we have seen that the resource allocation mechanism has been retained at the Treasury, let’s see the formula the PSC suggested for disbursing resources from Treasury – just as a guideline.

Basically, PSC has allowed political patronage to be the basis for future resource allocations. Treasury has historically used political patronage to allocate resources inequitably, so this has been retained. Future wielders of Presidential power will wield the power over resource allocation.

In the draft, the PSC suggested that the 47 county governments receive only 15 per cent of the revenue collected by the national government, based on the last audited public accounts approved by Parliament.

That means, if this draft constitution comes into effect in 2013, the available audited accounts may be those of 2009/10, on the basis of which the 47 counties will receive a paltry Sh85 billion out of a potential expenditure of Sh1,000 billion.

Now divide Sh 85 billion by 47 counties and each government, for instance the populous one in Kericho, gets only Sh 1.8 billion per year. As the cash is sent to county governments, the strong national government will simultaneously relieve itself many development obligations and payment of salaries of public servants in the county. That is where the cunning PSC team hopes to hoodwink masses.

In typical PNU cunningness, PSC capped the resource allocation to counties in the Constitution to the figure 15% irrespective of any mitigating circumstances.

This is yet another clever ploy by PNU to put a CONSTITUTIONAL CAP, shielding taxpayer money inside the Treasury, with very little going to the periphery.

Again in PNU style, to hoodwink poor regions (during the referendum) that their areas are being given consideration, the crafty PSC drafters proposed that marginalised regions will receive a grant of 0.5 per cent of the revenues, which amounts to a paltry Sh2.8 billion, to cover infrastructure projects in ‘health, water, roads, electricity and other necessary services’.

This was loftily said to be motivated by the desire to ostensibly ‘bring them to as nearly equal a state to the rest of the country as possible’.

Now, let's be serious, how will this tiny amount of money spread over a third of the counties (16 counties, several in the Rift Valley) reverse a legacy of deprivation and neglect?

Splitting Sh 2.8 billion between 16 counties in arid and semi-arid regions means each county gets just an extra Sh 175 million per year.

The PSC knows these are just gimmicks.


The PSC also went ahead, as driven by the PNU Coalition, to devour the Senate, which is supposed to be a legislative body that protects regions against marginalization.

After killing the regions, the so-called senate was deliberately incapacitated and rendered toothless, by the PSC, and is now akin to the forum for authorities in the infamous Kilifi Draft whose proposals were completely rejected in 2005. Are the people of Rift valley aware of this?


To illustrate how divided Rift Valley’s voice was while entering this debate, it is noteworthy that Chepalungu MP, Isaac Ruto, favored a parliamentary system while Agriculture MP,William Ruto, proposed a pure presidential system.

Someone must have been bidding on behalf of external forces and sure, the pure presidential system carried the day.

But how is the pure presidential system likely to impact Rift Valley residents in case Rift Valley doesn’t produce a President for a long time?

If a parliamentary system was adopted, as Isaac Ruto suggested, Rift Valley MPs would definitely have a formidable voice of representation and parliamentary voting bloc that would guarantee safeguards against marginalization, unfair resource allocations and under-development.

However, under the pure presidential system proposed by William Ruto, Rift Valley will have to depend on the whims and mercy of that powerful President. Nobody can guarantee who the President is going to be in 2012, 2017, 2023 etc.

In our country bedevilled by corruption, ethnicity, political patronage and impunity, the proposed pure presidential system offers a perfect platform for the elected President to morph into another imperial ruler favouring select regions.

This leaves Rift Valley and all other regions in a precarious situation, simply depending on goodwill and hopes that a 'favourable' Presidency comes by. Unfortunately, that possibility cannot be guaranteed at all times.

Ever Province in Kenya has tasted what a hostile Presidency can be like, when political expediency overrides parliamentary decisions, with the executive invariably disregarding recommendations, resolutions and/or directives of the House, with little or no sanction.


Despite false arguments being forwarded by PNU MPs, the truth of the matter is that Central Kenya did benefit from adequate representation over the years since independence, compared to other regions. The appalling inequality between Central and Rift Valley is testimony enough.

Poverty index is higher in Rift Valley (more than 55%) and lowest in Central (at only 31 per cent). We cannot marginalise parts of our country including Rift Valley (parts of which are arid) and then go ahead to claim that they do not deserve more representation.

During the Naivasha constitution debate, Central Province MPs in the PSC led by Uhuru Kenyatta and Jeremiah Kioni, insisted on redrawing constituencies in the constitution because they claim areas occupied by GEMA, are under-represented in the House.

They falsely claim that Rift Valley and North Eastern provinces are “over-represented” because of former President Moi’s influence.

With sure help from William Ruto, Ababu Namwamba and Isaac Ruto in the PSC, the Central MPs (ignoring the professional job being done by the Independent Boundaries Commission) have thus "fixed" this "anomaly" by creating a relatively sizeable number of new constituencies in Central, Nairobi, Upper Eastern, and parts of Rift Valley occupied by GEMA.

Of the 80 new constituencies created, all regions benefited from a few more extra seats, but the GEMA region is slated to get the lion’s share of extra seats, cunningly distributed across four regions (Nairobi, Central, Upper Eastern and parts of Rift Valley they occupy).

For certain, their relative parliamentary strength will only be felt in future if the draft remains as proposed. A lot of CDF funds will also be directly heading onto these new GEMA constituencies thus allocating direct resources to their people.

It is baffling that Rift Valley MPs did not question the fallacious argument about Central Kenya being ‘under-represented’.

Based on 2005 population projections by ECK, and the recently concluded Census, Central’s population has in fact been shrinking.

Indeed, Central Kenya has relatively lower average population per constituency/MP at 139,000 than all the other provinces except North Eastern.

For every one constituency in Central, there is an average of 139,000 people, while in Rift Valley, for every constituency, there is an average of 171,000 people. Which province is therefore under-represented in reality?

Another important thing that affects representation in Rift Valley is geographic size of constituencies. When we look at the average geographical size of constituencies, Central’s is only 456 square kilometres, compared 3,700 sq. km for Rift Valley.

Thus an MP in Central Kenya travels only 456 square kilometres (in good roads) to meet 139,000 constituents while his counterpart in Rift Valley covers 3,700 (of rough terrain) to meet 171,000 constituents. Based on this size alone, the constituency in Rift Valley deserves to be split.

Indeed, people in Rift Valley had a chance in Naivasha, to demand a ceiling on the geographical size of their constituencies but they simply did not.

William Ruto, Isaac Ruto and other Rift Valley MPs should explain what they were doing at the PSC resulting in this blatant disenfranchisement and further marginalization of their own people.

Has William Ruto ever considered this - Moi was guaranteed and rewarded his promotion by Kenyatta when he stiffled Rift Valley's constitutional aspirations like Majimbo precisely because he had no prior brush with Kenyatta's community. Compared to Moi in 1960s, is Ruto standing in a similar position today?
I tried  to retrieve the same document from where it had also been posted at the time. To no avail. It has since been removed from that site.

Looking back, would it have been better for Raila Odinga, Kalonzo Musyoka, Uhuru Kenyatta and William Ruto to have opted for a PARLIAMENTARY system back then?

With the benefit of hindsight, one would say yes.

It appears back then, political opportunism, expediency and myopia trumped and triumphed over principle and strict adherence to democratic values.

Many Kenyans will no doubt recall what my friend Miguna Miguna who has  made a name for speaking out his opinions candidly and  fearlessly on February 3, 2010:
Now that we have read the draft constitution by the PSC, can we confidently say that it is significantly different from – and an improvement on - the current one that Kenyans want nothing to do with? If not, why has it been hailed by various leaders as the salvation we have been waiting for?

PSC claims in its “report” to the CoE that its proposed draft Constitution “modified” the “Reviewed” Harmonized Draft based on powers donated to it by section 32(1)(c) of the Constitution of Kenya Review Act, 2008. Although my intention here isn’t to quibble with the obvious misstatements by the PSC, Kenyans need to know that the section cited only allows the PSC to deliberate and attempt to build consensus on “the contentious issues on the basis of the recommendations of the Committee of Experts.” The section does not permit the PSC to draft, redraft, modify, edit, amend or change the Revised Harmonized Draft Constitution.

As correctly noted by the PSC in its report, the CoE had identified the system of government, devolution and transitional and consequential provisions as contentious. In its report to the PSC, the CoE had clearly stated that prisoners’ rights, the Bill of Rights, electoral system, Kadhis Courts and land were non-contentious. Consequently, the PSC’s mandate was restricted and limited to deliberating and building consensus on and finally recommending changes to the draft to the extent of consensus reached on the three contentious issues.

But no; in its wisdom, the PSC usurped powers that do not legally belong to it and rewrote the entire draft Constitution. Without justification, the PSC deleted large chunks of the preamble, values, cultural rights, bill of rights, devolution, the legislature and the entire system of government.

For today’s discussion, I will deal only with the executive arrangement proposed by the PSC. How is it different from and an improvement on the current constitution?
Just like in today’s Constitution Kenyans have rejected, the PSC proposes that the president be head of state and government. S/he will address the opening of each newly elected National Assembly. S/he is also authorized to address a special sitting of Parliament once every year and s/he may address the National Assembly at any other time. The president appoints and dismisses all public officials including cabinet ministers, deputy ministers, ambassadors, high commissioners, permanent secretaries, heads of state corporations and even judges. S/he also creates and disbands public offices. The president is the commander-in-chief and can declare a state of emergency with approval of his cabinet. S/he may propose legislation to the National Assembly. In the PSC draft, the president also chairs both the national security and defence councils.

Contrary to claims by the PSC that they have constructed proper checks and balances that would prevent abuse and misuse of power; the contents of the PSC draft say otherwise. For instance, the president is immune from both criminal and civil proceedings. That means if a rogue president refuses to pay for food at a local restaurant or for the contraction of his private residence, there is nowhere an innocent Kenyan would go to obtain justice.

The much touted “independent” judiciary is still very much a toy for the executive. The “independent” judiciary does not have administrative, institutional, financial and political independence. The proposed “Judicial Service Commission” is comprised of mainly presidential appointees. It’s chaired by the Chief Justice and composed of two judicial officers, the Attorney-General, the chair of the Public Service Commission and a secretary who is the Chief Registrar – all presidential appointees. The only “independent” members of the Judicial Service Commission would be two advocates and two lay members. A team of six senior public officers appointed by the president and four “outsiders” is what the PSC calls an “independent judicial service commission! It’s not clear at all how the so-called “independent” judiciary would be a check on the executive.

In all likelihood, a president elected by 50 per cent plus one would have considerable sway in the National Assembly, which is categorized here, contrary to all historical precedents, as the “upper house.” Yet, it’s the same house that has been mandated with investigating, charging and passing judgment over president facing impeachment.

Apart from the fact that the process prescribed offends the principle of natural justice: one cannot be an accuser, a prosecutor and a judge all rolled up in one; it’s also practically useless. Natural justice demands that the investigative, prosecutorial and judicial functions be separated so that justice can not only be done; but it can be seen to be done. Needless to say, the removal of a sitting president by impeachment would not work as s/he would directly or indirectly control the National Assembly. Nor is there a provision for removal through a vote of non-confidence.

The PSC has retained the Provincial Administration minus the provinces. They have also proposed functionless “regional assemblies” without regions. And with 47 counties scattered all over the country, but largely concentrated in the Rift Valley and Eastern provinces, it is difficult to see how the PSC draft improves the current system of government. In many ways, it makes it worse.

What would Kenyans do if a president decides to stay in State House without venturing outside? How can Kenyans prevent a president from violating their rights, the constitution and laws of the land?

I would like to challenge those propagating this system to clearly explain to Kenyans where the checks, the balances and accountability mechanisms are before we are told to sing hosanna! And with the old Kanu vultures circling and regrouping, I fear for my country.
As Kenyans come to terms with the short and long term ramifications of a Uhuru Kenyatta  presidency, we should reflect on the following:

1. The role of mainstream politicians in watering down and bastardizing our highest ideals of democracy, social justice and equality;
2.The need to make urgent and thorough amendments to the Constitution to deal with issues about gender equality, parliamentary rule;
3.Eliminate the problems around the shambolic primaries by doing away with them altogether; this can be achieved by adopting proportional representation and party lists;
4. Carry out further structural reforms in bodies like the IEBC;
5. Revisiting the ICC issue by creating local courts and tribunals to deal with crimes against humanity and other serious offences;

Finally, to those who had invested a lot of hope and placed great expectations emanating from a  Supreme Court presided over by ex detainee, former member of the socialist underground and respected civil society figure, let us seek solace that the struggle for ultimate liberation of this country is and will continue to long, protracted, ardous with zig zags, u turns and setbacks along the way.

For those of us who look up to saviours and messiahs to rescue us from political perdition,  let us appreciate the stellar role such individuals play in contemporary political, social, cultural and ideological affairs while also reflecting on these cautionary words:

The role of great men [and women – Oloo] in history can be understood only by examining their activity in relation to the class struggle, to the activity of large social groups and to the struggle between these groups. Outstanding public men [and women - Oloo] are not the creators of events and movements but the leaders of the masses, of social classes. The support they receive from large social groups is, in fact, the source of their strength. No matter how gifted and intelligent these leaders may be in themselves, without such support they are powerless and incapable of exercising any significant influence on the course of events... Whether people with exceptional abilities come to the fore or not is inseparably connected with the operation of historical law.

‘There are always talented, gifted people in society. But only the appearance of a social need for people possessing certain capabilities, certain qualities of mind and character, can bring such people to the fore and create the necessary conditions for this. This is seen particularly strikingly in an epoch of revolutions, when hundreds of thousands of people come to direct public affairs, people who shortly before were quite unknown and who under the conditions of the old system could find no application of their talents and abilities. In exactly the same way the social demand in time of war creates conditions for the promotion of people possessing qualities of generalship. Who it is who comes to the fore under certain social conditions remains, of course, a matter of chance, the actual fact of the promotion of people whose qualities correspond to the needs of the age has the character of a natural law... Whether a particular outstanding public figure arises or not is a matter of chance, but this does not mean that anybody could occupy his (or her) place and carry out (their) historical mission. To perform that task appropriate qualities and abilities are needed. It is usually therefore people possessing such qualities to a greater or lesser degree who come to the fore as leaders..
 From, Otto Kuusinen, Fundamentals of Marxism-Leninism, Moscow, Foreign Languages Publishing House, pp.222-7.

 Onyango Oloo
Blogging from the Supreme Court Media Centre
Saturday, March 30, 2013
Nairobi, Kenya

Wednesday, March 27, 2013

Kimemia Must Stop Criminalizing Dissent!

The 4th Chapter of the Kenyan Constitution (2010) covers the Bill of Rights. Here is a section:

1) The Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies.
(2) The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings.
(3) The rights and fundamental freedoms in the Bill of Rights --

(a) belong to each individual and are not granted by the State;
(b) do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognised or conferred by law, except to the extent that they are inconsistent with this Chapter; and
(c) are subject only to the limitations contemplated in this Constitution.

1) The Bill of Rights applies to all law and binds all State organs and all persons.
(2) Every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom.

(1) It is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights.
(2) The State shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realisation of the rights guaranteed under Article 43.
(3) All State organs and all public officers have the duty to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities.
(4) The State shall enact and implement legislation to fulfill its international obligations in respect of human rights and fundamental freedoms.
This Bill of Rights echoes other human rights principles and canons that are universally accepted around the world, like for instance the Article 1 of the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms Adopted by General Assembly resolution 53/144 of Dec. 9, 1998  which says:
Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels.
It is in the above context that we should now look at the following accounts filed by Kenyan human rights defenders, activists and social media bloggers:

The first account is from Ms. Ruth Mumbi from Bunge la Wamama Mashinani:

 Mumbi Ruth     Mon, Mar 25, 2013 at 7:35 PM
To: kptj , IMLU

Caroline Wangechi is a  community human right defender and a member of Bunge la Wamama Mashinani in Kiamaiko village in Mathare.Caroline has been in the fore front of defending the rights of youth and women in mathare and during the recent campaigns together with Bunge la Wamama Mashinani members Rahma Wako, Victoria Atieno and myself were doing political education on voter education on voluntary basis just to sensitize the community essence of good leader.
Some of the aspirants were unhappy with the work. On  9th Feb 2013 Caroline was threatened by a brother to the TNA parliamentary aspirant George Wanjohi, who was a former councilor of kiamaiko ward which forms part of Mathare constituency. During his tenure, Kiamaiko experienced a lot of human rights violations, forceful evictions, grabbing of social and public amenities. The aspirant’s brother had warned Caroline that if his brother happens to lose the seat, she is going to face it rough.  We reported the threats to huruma police station but since then nothing has happened.

One week ago a lady campaigner of the MP claims to have been assaulted by unknown people but we were shocked yesterday 23/03/2013 when she came with civilian police men at Caroline’s house and claimed that it was Caroline who had assaulted her. Caroline was arrested and taken to Huruma police station where I’m informed by Caroline that complainer was accompanied by the MPs sister who was bragging that they have managed to catch the big fish and that the others  will now shut up (tumeshika big fish, wengine watanyamaza).

The Kiamaiko community did manage to raise a cash bail of ksh5000 and Caroline was released. She will be arraigned in court on Tuesday and where she is being charged with assault.
Due to this Bunge La Wamama Mashinani is kindly requesting for solidarity when she is being arraigned in court Tuesday 26/3/2013 at Makadara law courts.

We as Bunge la Wamama Mashinani we feel that Caroline’s freedom of thought, conscience, speech and expression is being threatened and curtailed.

The Mathare parliamentary results is still challenged in court of law waiting the decision of court and if the court rules we go for a by election they are using crude ways silencing defenders thought and conscience.

Ruth Mumbi
Bunge La Wamama Mashinani 0713 888 736

The second story is contained in this email  social justice activist Sakwa Makanda:

From: Franks
Subject: Police on spot over Extrajudicial killings in mathare
To: "Mumbi Ruth"
Date: Friday, March 22, 2013, 12:15 PM

Police on spot over Extrajudicial killings in mathare

Resident of mathare 3c woke up to a shocking news this morning after it emerged that police brutally opened fire killing an elderly man well known to the resident as Asman near his residential gate.
The deceased who is "mandazi" vendor was sprayed
with atleast 6 bullets and died on the spot.the strayed bullets penetrated into nearby shanties seriously injuring a man and his wife who were sleeping at around 10 pm.the two were taken to Kenyatta national hospital by the perpetrators.

The dramatic night shot out scared the residents away who only come out to find the dead body lying in a pool of blood. They identified the killers as 9 plain heavily armed police officers, some well known to the resident of mathare. The officers then took  the body immediately in a police land rover.

The incident is happening few day after two other people died in cold bloods in the same fate. The mathare 3c area has been lately experiencing  volatile violence during, pre and post electioneering period. Despite several condemnation from the members of public and grassroots human right defenders      the police are still resorting into extrajudicial killing as a way of enforcing law and order in mathare slum which contradict the fundamental human rights.

The angry resident of mathare slums are now appealing for an immediate investigation and prosecution of the perpetrators attached to huruma police station.

Francis Sakwa
Social justice activist

Samuel Doe
Mathare residents

The third excerpt is drawn from an article published on the Ghafla! online platform:

 Robert Alai Summoned To CID HQ Over His Tweets

Controversial blogger and tech-writer Robert Alai was this morning summoned to the CID headquarters on Kiambu road for questioning. This comes after the blogger made “grave” allegations via his Twitter handle that the police felt contravened the law.

In the tweets, Alai alleged that Justice Lenaola (one of the six Supreme Court judges hearing the CORD petition) was meeting some of the plaintiffs in the case and tagged Chief Justice Willy Mutunga in the tweet. Here is the series of the tweets;

"Why is Justice Lenaola meeting litigants? @WMutunga” Mar 24, 2013

"Isaack Hassan also has joined Kimemia and Lenaola at the club.” Mar 24, 2013

"Francis Kimemia and Justice Lenaola now meeting at a private members’ only club in Karen.” Mar 24, 2013

By the time this article went up, the controversial blogger was headed to Milimani Court to face charges. Alai was in the company of Norman Magaya, ODM Youth 2012 chairman.

Journalist Bogonko Bosire advised the blogger to go defend the tweets if indeed they are true, if not apologize. “My word to Alai as I always say, being summoned is okay, if what you wrote is True go defend it, if it is not apologize, but being summoned to defend yourself is a great chance for you to prove what you said is true........We must always be ready to defend what we say and write, Social media should always exercise the highest standards of commitment to Truth.....Go tell the truth if it’s true and again Apologize if it’s not....That is my take,” posted Bogonko.
The final quote is from Kenyan independent film maker Roy Ogola's Facebook update:

@RobertAlai's Charge: Posting annoying TWEET/MESSAGE on TWITTER contrary to Section 29(b) of Kenya Information & Communication Act CAP 411A Laws of Kenya!
Fortunately, Alai is now out on bail as you can see from this link.

Separately but on a related note, there have been some disturbing media reports of the Head of Civil Service  and the Inspector General of Police together with the country's security chiefs deigning to "ban" rallies, protests and other public gatherings.

Here is a report from the Standard newspaper:

 Top security organ warns Raila against holding rallies

By Cyrus Ombati

Nairobi, Kenya: Kenya’s top security organ has told Prime Minister Raila Odinga and Vice President Kalonzo Musyoka to suspend planned countrywide rallies as they could trigger violence.

The National Security Advisory Committee also upheld a ban on political meetings.

 The National Security and Advisory Committee (NSAC) said the public meetings were unwarranted and could trigger animosity and violence.

 The committee, which is chaired by head of civil service Francis Kimemia met on Wednesday evening and declared they will not allow the meetings to continue as planned.

 The meeting came after the leaders of the Coalition for Reforms and Democracy announced they planned to hold a series of rallies on Saturday and Sunday.

 Members of NSAC include Kimemia, Inspector General of Police David Kimaiyo, Permanent Secretaries Mutea Iringo, Thuita Mwangi, Nancy Kirui, National Intelligence Service Director General Michael Gichangi, Attorney General Githu Muigai and Kimaiyo’s deputies Grace Kaindi and Samuel Arachi.

Raila, Musyoka and Bungoma Senator-elect Moses Wetangula had planned to hold a rally in Kakamega on Saturday.

 Kimemia, later explained Wednesday's security meeting was convened to deliberate Raila's recent claims that he had won the presidential elections.

 He said the meeting upheld a directive by Kimaiyo that banned mass actions, demonstrations and political gatherings.

 "Such meetings could obsolete gains made from the peaceful conduct of elections which demonstrated to the world that Kenya’s democracy had matured and investors were already releasing investment capital," said Kimemia.

Kimemia said all parties have been banned from holding political meetings.
 Kimaiyo said they are trying to reach the CORD leaders directly and diplomatically to implore on them to drop the planned rallies for a while.
 The committee also directed police to disperse crowds that usually gather outside the Supreme Court in the city saying there are illegal.

But the move can be legally challenged because the Constitution and in particular the Bill of Rights allows freedom of speech and assembly.
The groups usually meet outside Nakumatt Supermarket and KICC to discuss general political and current issues. They have been meeting there for more than a year now.
 "We took issue with idle, noisy mobs congregating outside Supreme Court of Kenya and KICC buildings as they have become a public nuisance and disrupting Court processes and business operations around the area.
"This will be disallowed since strategic buildings were under security surveillance and such mobs are a security threat and should be advised to disperse with immediate effect," Kimemia said. 
NSAC urged Raila to let the Judges of the Supreme Court to rule on the presidential petition he had files protesting the results of the March 4 election.
 "Court process should be left to those authorised into courts. Any attempts to disrupt, discredit or intimidate the Courts, IEBC or other institutions of the State will not be tolerated," said the statement by NSAC.
The PM has filed a petition at the Supreme Court challenging Independent Electoral and Boundaries Commission’s declaration that Uhuru Kenyatta won the presidential election.
 On March 9, IEBC declared Kenyatta winner of the presidential election with 6.1 million votes against Raila’s 5.3 million.
The Nation  basically echoed this account.

What is happening in Kenya around the erosion of civil liberties is causing a furore even in advanced democracies like Canada, the United Kingdom and the United States of America.

A piece in the Canadian Lawyer delves into this matter:

While freedom of speech and the right to organize politically are recognized human rights, the sphere of operation for those who do not agree with governments is shrinking both at home and abroad.

In Canada, gone are the days of being able to oppose one’s government without the fear of being silenced. Lawful demonstrations during the G-20 summit in 2010 resulted in a rash of arrests, as well as unlawful “kettling” of innocent citizens participating in the event. The Canadian International Development Agency failed to renew development contracts for NGOs that disagreed with particular policies. The Canada Revenue Agency will remove an organization’s status as a charity if it deems its work to be political.

Most recently, the criminalization of dissent has been noted in Canada’s counter-terrorism strategy unveiled by Minister of Public Safety Vic Toews in 2011. In “Building Resilience Against Terrorism,” under the main heading “The Terrorist Threat,” the strategy document lists environmentalism and anti-capitalism as examples of “domestic issue-based extremism.”

So, how did we get here? According to Roch Tassé, national co-ordinator of the International Civil Liberties Monitoring Group who has been carefully tracking the change in attitude of the federal government through various reports and initiatives, it is clear there is now a greater alignment between government and corporations. The focus on economic growth is their common interest.

The federal government, in particular, has been engaged in a disciplined communications strategy whereby it constantly and consistently messages to Canadians that economic interests, meaning economic growth, are the same as national interests. The language of post-Sept. 11 anti-terrorism legislation created to counter terrorist activities that threatened our national interests is now being used to allow government police agencies to spy on those who speak against corporate interests, particularly in relation to the extractive industries.

In other countries, Canadian NGOs are witnessing even more aggressive tactics being used against human rights defenders. They have heard stories of people whose governments have turned their backs on them, allowed their rivers to become polluted, allowed their children to become ill, and have no interest in their well-being. And when an individual has the temerity to complain and then organize her community to demand change, she is targeted to be silenced. It is not unusual for human rights defenders to be killed, for their families to be threatened, and for both family and community members to be in conflict with them.

Physical violence used to be the norm and is still not unusual. However, more recently, and especially because many human rights defenders are women and there is greater media documentation, the tactics have become more subtle. In a recent talk, Lolita Chavez, co-ordinator of the K’iche People’s Counsel, an indigenous human rights defender from Guatemala, spoke about how the law is used to wear people down, outside of the eye of the cameras, by creating false claims which must be answered and require money activists don’t have. It also take their time, which is then diverted from the community organizing essential to fight the corporations causing damage in their communities.

In some cases their families turn against them, and in others the rest of the community will distance themselves from the complainant. In effect, they are terrorized and suffer great psychological distress. Chavez said her people have a saying for this tactic: “taking the water away from the fish.”

The hand-in-glove relationship between the Canadian government and Canadian mining companies should cause concern in relation to the hardships we are creating, particularly in Latin America where indigenous peoples are rightly confounded by our desire to harm them when we are a rich country and live miles away. They worry, and rightly so, that their future and integrated understanding of reality is simply standing in the way of the North’s need to consume. Because they voice their disagreement both individually and in association with others, they are labelled criminals, justifying all the harsh treatment the state can throw at them.

In contrast to the North American and Latin American shifts towards the criminalization of dissent, the 2008 European Union guidelines for the protection of human rights defenders calls upon its missions to be active in monitoring, reporting, and assessing situations, as well as supporting and protecting human rights defenders. The guidelines describe the various ways its different operational arms can and should promote respect for human rights defenders in relations with third countries and in multilateral fora, support Special Procedures on the UN Human Rights Council, including the Special Rapporteur on Human Rights Defenders, and provide practical support for human rights defenders including through development policy.

The criminalization of dissent is so serious that in 2000 the United Nations decided to create a special rapporteur on the situation of human rights defenders. For more information about this topic you may be interested in reading the 2011 Special Rapporteur’s Commentary to the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms.
And from the United States, Z Magazine informs us:

Criminalization of Dissent And Militarism Of The Police

January 2012   

By Bill Quigley

Bill Quigley's ZSpace Page

The Obama administration has affirmed, continued, and expanded almost all of the draconian domestic civil liberties intrusions pioneered under the Bush administration. Here are 19 examples of serious assaults on the domestic rights to freedom of speech, freedom of assembly, freedom of association, the right to privacy, the right to a fair trial, freedom of religion, and freedom of conscience that have occurred since the Obama administration has assumed power.

1. PATRIOT Act. On May 27, 2011, President Obama, over widespread bipartisan objections, approved a Congressional four-year extension of controversial parts of the Act that were set to expire. In March 2010, Obama signed a similar extension for one year. These provisions allow the government, with permission from a special secret court, to seize records without the owner’s knowledge, conduct secret surveillance of suspicious people who have no known ties to terrorist groups, and obtain secret roving wiretaps on people.

2. Criminalization of Dissent, Militarizing the Police. Anyone who has gone to a peace or justice protest in recent years has seen that local police have been turned into SWAT teams and SWAT teams into heavily armored military with shields, shin guards, heavy vests, military helmets, visors, and vastly increased firepower. Protest police sport ninja turtle-like outfits and are accompanied by helicopters and special tanks. Even sound-blasting vehicles and wireless fingerprint scanners first used by troops in Iraq are now being utilized by local police departments to check motorists. Facial recognition software introduced in war zones is now being used in Arizona and other jurisdictions. Drones like the ones used in Kosovo, Iraq, and Afghanistan are being used along the Mexican and Canadian borders.

3. Wiretaps. Wiretaps for oral, electronic, or wire communications, approved by federal and state courts, are at an all-time high. Wiretaps in year 2010 were up 34 percent from 2009, according to the Administrative Office of the U.S. Courts.

4. Criminalization of Speech. Muslims in the U.S. have been targeted by Obama’s Department of Justice for inflammatory things they said or published on the Internet. First Amendment protection of freedom of speech stated in a 1969 Supreme Court decision, Brandenberg v Ohio, says the government cannot punish inflammatory speech even if it advocates violence unless it is likely to incite or produce such action. The DOJ indicted a Pakistani resident living legally in the U.S. in September 2011 for uploading a video on YouTube. The DOJ said the video was supportive of terrorists even though nothing on the video called for violence. In July 2011, the DOJ indicted a former Penn State student for going onto websites, suggesting targets and providing a link to an explosives course already posted on the Internet.

5. Domestic Government Spying. In activities that offend freedom of religion, freedom of speech, and several other laws, the NYPD and the CIA have partnered to conduct intelligence operations against Muslim communities in New York and elsewhere. The CIA, which is prohibited from spying on Americans, has worked with the police on “human mapping,” commonly known as racial and religious profiling, to spy on the Muslim community. Under the Obama administration, the Associated Press reported in August 2011, informants known as “mosque crawlers,” monitor sermons, bookstores, and cafes.

6. Top Secret America
. In July 2010, the Washington Post released “Top Secret America,” a series of articles detailing the results of a two-year investigation into the expanding world of homeland security, intelligence, and counter-terrorism. It found that 1,271 government organizations and 1,931 private companies work on counterterrorism, homeland security, and intelligence at about 10,000 locations across the U.S. Every day, the National Security Agency intercepts and stores more than 1.7 billion emails, phone calls, and other types of communication. The FBI has a secret database, Guardian, that contains reports of suspicious activities filed from federal, state, and local law enforcement. According to the Washington Post, Guardian contained 161,948 files as of December 2009. From that database there have been 103 full investigations and at least 5 arrests, the FBI reported.

7. Other Domestic Spying
. There are at least 72 fusion centers across the U.S. that collect local domestic police information and merge it into multi-jurisdictional intelligence centers, according to a report by the ACLU. These centers share information from federal, state, and local law enforcement—and some private companies—to secretly spy on Americans.

8. Abusive FBI Intelligence Operations. The Electronic Frontier Foundation documented thousands of violations of the law by FBI intelligence operations from 2001 to 2008 and estimate that there are over 4,000 such violations each year. President Obama issued an executive order to strengthen the Intelligence Oversight Board, an agency which is supposed to make sure the FBI, CIA and other spy agencies are following the law. No other changes have been noticed.

9. Wikileaks.
The publication of U.S. diplomatic cables by Wikileaks, and then by mainstream news outlets, sparked condemnation from Obama administration officials who said the publication of accurate government documents was an attack on the United States. The Attorney General announced a criminal investigation and promised, “This is not saber rattling.” Government officials warned State Department employees not to download the publicly-available documents. A State Department official warned students that discussing Wikileaks or linking documents to social networking sites could jeopardize their chances of getting a government job. The Obama administration continues to try to find ways to prosecute the publishers of Wikileaks.

10. Censorship of Books by the CIA. In 2011, the CIA demanded extensive cuts from a memoir by former FBI agent Ali H. Soufan, in part because it made the agency look bad. Soufan’s book detailed the use of torture on captured prisoners and mistakes that led to 9/11. A 2011 book on interrogation methods by former CIA agent Glenn Carle was subjected to extensive black outs. The CIA under the Obama administration continues its push for censorship.

11. Blocking Publication of Photos. In May 2009, President Obama reversed his position and refused to release photos of U.S. soldiers abusing prisoners. In April 2009, the Department of Defense had told a federal court that it would release the photos, which were part of nearly 200 criminal investigations into abuses by soldiers.

12. Technological Spying. The Bay Area Transit System in August 2011, hearing rumors of protests against fatal shootings by the police, shut down cell service in four stations. Western companies sell email surveillance software to repressive regimes in China, Libya, and Syria to use against protestors and human rights activists. Surveillance cameras monitor residents in high crime areas, on street corners, and at government buildings. Police department computers ask for and receive daily lists from utility companies with addresses and names of home addresses in their area. Computers in police cars scan every license plate of every car they drive by. The Obama administration has made no serious effort to cut back these new technologies.

13. Use of State Secrets to Shield Government from Review
. When the Bush administration was caught hiring private planes from a Boeing subsidiary to transport people for torture to other countries, Bush successfully asked the federal trial court to dismiss a case by detainees tortured because having a trial would disclose “state secrets” and threaten national security. When Obama was elected, the state secrets defense was reaffirmed before a federal appeals court. It continues to be a mainstay of the Obama administration’s effort to cloak their actions in secrecy.

14. Material Support. The Obama administration successfully asked the U.S. Supreme Court to allow the government to criminalize humanitarian aid and legal activities of people providing advice or support to foreign organizations that are on the government list of terrorist organizations. The material support law can now be used to penalize people who provide humanitarian aid or human rights advocacy. The Obama administration Solicitor General argued to the court “When you help Hezbollah build homes, you are also helping Hezbollah build bombs.” The Court agreed with the Obama argument that national security trumps free speech in these circumstances.

15. Chicago Anti-War Grand Jury Investigation.
In September 2010, FBI agents raided the homes of seven peace activists in Chicago, Minneapolis, and Grand Rapids, seizing computers, cell phones, passports, and records. More than 20 anti-war activists were issued federal grand jury subpoenas and more were questioned across the country. Some of those targeted were members of local labor unions and others were members of organizations like the Arab American Action Network, the Colombia Action Network, and the Twin Cities Anti-War Campaign, Many were active internationally and visited resistance groups in Colombia and Palestine. Subpoenas directed people to bring anything related to trips to Colombia, Palestine, Jordan, Syria, Israel, or the Middle East. In 2011, the home of a Los Angeles activist was raided and he was questioned about his connections with the September 2010 activists. All of these investigations have been directed by the Obama administration.

16. Punishing Whistleblowers. The Obama administration has prosecuted five whistleblowers under the Espionage Act, more than all other Administrations. He charged a National Security Agency advisor with ten felonies under the Espionage Act for telling the press that government eavesdroppers were wasting hundreds of millions of dollars on misguided and failed projects. After their case collapsed, the government, which was chastised by the federal judge as engaging in unconscionable conduct, allowed him to plead to a misdemeanor and walk. The Admin-istration also prosecuted former members of the CIA, the State Department, and the FBI. They even tried to subpoena a journalist and one of the lawyers for the whistleblowers.

17. Bradley Manning. Army private Bradley Manning is accused of leaking thousands of government documents to Wikileaks. These documents expose untold numbers of lies by U.S. government officials, killing of innocent civilians, policies to ignore torture in Iraq, information about who is held at Guantanamo, cover ups of drone strikes, abuse of children, and much more damaging information about U.S. malfeasance. Though Daniel Ellsberg and other whistleblowers say Bradley is an American hero, the U.S. government has jailed him and is threatening him with charges of espionage, which may be punished by the death penalty. For months Manning was held in solitary confinement and forced by guards to sleep naked. When asked about how Manning was being held, President Obama personally defended the conditions of his confinement, saying he had been assured they were  meeting basic standards.

18. Solitary Confinement
. At least 20,000 people are in solitary confinement in U.S. jails and prisons, some estimate several times that many. Despite the fact that federal, state and local prisons and jails do not report actual numbers, academic research estimates tens of thousands are kept in cells for 23 to 24 hours a day in supermax units, lockdown, security housing units, “the hole,” and special management units or administrative segregation.

Human Rights Watch reports that one-third to one-half of the prisoners in solitary are likely mentally ill. In May 2006, the UN Committee on Torture concluded that the United States should “review the regimen imposed on detainees in supermax prisons, in particular, the practice of prolonged isolation.” The Obama administration has taken no steps to cut back on the use of solitary confinement in federal, state or local jails and prisons.

19. Special Administrative Measures
. Special Administrative Measures (SAMS) are harsh conditions of confinement imposed on prisoners (including pre-trial detainees) by the Attorney General. The U.S. Bureau of Prisons imposes restrictions on such segregation and isolation from other prisoners and limitation or denial of contact with the outside world such as: no visitors except attorneys, no contact with news media, no use of the phone, no correspondence, no contact with family, no communication with guards, 24-hour video surveillance and monitoring. The DOJ admitted that several dozen prisoners, including pre-trial detainees, mostly Muslims, were kept incommunicado under SAMS.

These concrete examples document a sustained assault on domestic civil liberties in the United States under the Obama administration. Rhetoric aside, how different has Obama been from Bush in this area? 
Bill Quigley is a human rights lawyer and law professor at Loyola University New Orleans. He works with the Center for Constitutional Rights.

The following cartoon illustrates the arguments in the Z magazine article:

Electronic Intifada gives us this story from the United Kingdom:

“We are very angry, very afraid, very sad, very upset. My wife, she is depressed. When she sees police in the street she’s very frightened. They destroyed our life,” says Badi Tebani.

In January 2009, Tebani’s teenage son Yahia was one of tens of thousands of people who joined demonstrations in London against the Israeli bombing of Gaza. At one of those demonstrations Yahia and many others were “kettled” — surrounded by a police cordon and slowly let out in return for giving their names and addresses and for being filmed.

That was the last Yahia knew of it until the following April, when the family home was raided by 20 to 30 police at 5am. The front door was forced open and Badi Tebani and his family were ordered to lie on the floor. His four sons were all handcuffed. Three police officers knelt on the back of Hamza, 23. He was sleeping in shorts, but they refused to let him put on any clothes, even though they’d opened the windows, letting in the cold. Computers, mobile phones and clothes were all taken and the family car was broken into. Badi and Hamza described how police played games on the boys’ iPhones and made themselves coffee in the kitchen.

According to Badi, it was worse than anything he experienced back in Algeria. Badi is an Algerian who came to the UK seeking political asylum from the violence between the government and military and the political opposition which left 200,000 dead during the 1990s. He has taught here ever since.

The entire family was shocked when they discovered that it was Yahia the police were after. “He is a student at university, he has never has been in prison or in trouble with the police,” says Badi Tebani. “He’s always had a good character, good behavior.”

Yahia was later charged with violent disorder, an offense which carries a jail term of up to five years. He says that during the demonstration he took a chair from a nearby Starbucks to sit on, but police alleged that the cafe was trashed and the furniture used as weapons. Yahia was advised that if he pleaded guilty to the charge he would get community service, so he followed his lawyer’s advice. He didn’t know that most of the protesters who did the same were being sent straight to jail, so he was shocked when a friend was handed a two-year sentence. Yahia is now serving a one-year prison term.

“It’s a very big shock,” says Badi Tebani. “I visited Yahia during the week. He is the kind of person where you don’t know what he is thinking, but I know he is very, very sad, very upset. He will lose a year at university. His friend was sentenced to two years, he just took a stick in his hand for a few minutes, he didn’t throw it, he didn’t do anything. Another, he was sentenced to a year just because he went on the demonstration — he’s 16, he’s at college doing his A levels. They all fear the future because with a criminal record, it’s difficult to find a job.”

“They can’t say our boys are criminals,” continues Tebani. “They demonstrated to support people in Gaza. All the world knows what happened there, how many people were killed, how many houses destroyed. I think the real criminal is Israel. If any judge in the world needs to judge anyone, he needs to judge those responsible in Israel. People tried to help, to stop the catastrophe in Gaza, to ask the British government to stop the war. But the government sends them to jail.”

According to figures collated by Joanna Gilmore of Manchester University, Yahia Tebani is one of 119 individuals arrested at or after the demonstrations. The youngest person arrested was 12, although the average age was 18 or 19. Almost all of the demonstrators charged with violent disorder were Muslim, despite the mixed nature of the protests, which were supported by majority-white organizations like the Campaign for Nuclear Disarmament as well as by Islamic groups.

At least 22 persons have been given custodial sentences, with terms of up to 30 months. Most of these have come from Judge Denniss at Isleworth Crown Court in West London, who has made it clear that he is imposing “deterrent” sentences. A 15-year-old boy was given a non-custodial sentence which involves a curfew and an electronic tag, while a Palestinian who only days earlier had seen images in the newspapers of dead relatives in Gaza was given a two-year jail term.

According to Gilmore, the number of arrests and sentences resulting from the Gaza protests are far greater than those from much larger and more violent anti-war and anti-capitalist demonstrations which have taken place in London.

Lawyer Matt Foot, who is acting for several of the protesters, agrees. “The dawn raids were an extreme measure,” he says. “It’s the first time I’ve come across it on a large scale in recent times for this kind of offense. It was used in the 1980s for the miners’ strike, and in smaller numbers for an anti-Bush demonstration.”

Foot also says he believes that too many people were arrested in the first place, and then that demonstrators were “over-charged” in relation to their actual actions. “At the anti-Bush demonstration, very few people got convicted of violent disorder and if they did they got non-custodial sentences, the judge certainly didn’t talk about deterrent sentences then.” He acknowledges that Islamophobia could have played a part in the decision to arrest and charge so many people with such serious offenses.

“That’s one of the differences with the anti-Bush protests,” Foot adds. “Very few white people were charged in the end. It’s not necessarily the judge’s fault — I think they were over-charged, too many people were charged and I think the courts have then seen 60 people coming through on violent disorder and reacted in a certain way. I think the mischief comes from too many people being arrested and then being over-charged.”

Joanna Berridge of the Gaza Demonstrators Support Campaign fears that the British authorities are using the Gaza protests as an “easy target” to suppress political demonstrations more widely, playing on widespread Islamophobia to set legal precedents which can then be used against other protesters. “It’s first about political policing of protest, with the Islamophobia feeding into it,” she claims.

Foot also points to a lack of coordination between the different cases as having resulted in badly-advised guilty pleas. According to Joanna Berridge, the Islamic Human Rights Commission and a few individual activists distributed information on lawyers and protesters’ legal rights at the demonstrations, but it seems that many of the organizations who called for the protests didn’t follow suit. This, coupled with the fact that many of the arrests happened up to eight months after the protests, meant that many defendants have ended up with duty solicitors from their local police stations, rather than lawyers with specialized knowledge of defending protesters.

“In comparison with the G20 protests, the demographic of the protesters is very different,” says Berridge. “People from movements like Climate Camp knew how to protect themselves, whereas for a lot of the guys on the Gaza demos, it was a spontaneous thing. It was the first march many of them had been on, so they didn’t know their rights. The deterrent sentences have mainly been handed out to people who pleaded guilty, while the majority of those with more legal know-how, who have been involved in protests before, have had their cases thrown out before they even got to court, or been found not guilty.”

The Gaza Demonstrators Support Campaign has responded to the need for better legal knowledge amongst Palestine solidarity campaigners by organizing legal observer trainings. They are also offering practical support, such as translation and refreshments, to the defendants and their families at court, and fundraising for families who have lost breadwinners to jail terms.

A second campaign, run by the Stop The War Coalition, has collected more than 1,500 signatures on a petition against the sentences. Jeremy Corbyn, Labor MP for Islington North, called some of the sentences “extraordinary and out of all proportion to the crimes committed.” The campaign also tabled a parliamentary question on the policing of the protests, which also attracted 55 complaints to the Metropolitan Police and the Independent Police Complaints Commission. A number of these were dropped because the ID numbers on officers’ uniforms had been covered up.

As Matt Foot puts it, “The judges hand down these deterrent sentences and it’s about real people’s lives. They say, ‘these are people of good character’ and then start locking up young people who just care about what’s happening in Palestine, the whole thing becomes hideous.”

“I think the result of these cases on a larger scale will impact heavily on future rights to protest,” emphasizes Joanna Berridge. “It’s really important that these boys don’t get used as an example, because this will stay on their record for years. They were protesting about something as widely recognized as war crimes against Gaza. That’s not been taken into account but it should really be focused on, that these brave and conscious young people were going out and taking a stand and are having their lives ruined as a result.”

Sarah Irving is a freelance writer from Manchester, UK. She worked with the International Solidarity Movement in the occupied West Bank in 2001-02 and with Olive Co-op, promoting fair trade Palestinian products and solidarity visits, in 2004-06. She now writes full-time on a range of issues, including Palestine, “,” Her first book, Gaza: Beneath the Bombs, co-authored with Sharyn Lock, was published in January 2010.

The resurgence of state intimidation, police harassment, arbitrary arrests,lobbing of tear gas, firing of live bullets, rounding up of activists and even extra judicial killings is CHILLING.

It reminds me of the dark days of the long night of Moi KANU one party fascist dictatorship.

Many of the teenagers and  early twentysomething facebookers and twentysomething twittering twits babbling, yammering and jabbering gibberish endorsing these draconian, illegal and unconstitutional state terror tactics had NOT EVEN BEEN CONCEIVED back in the day when it was considered OK for the cops to storm a private residence and arrest four family members discussing the news headlines when having their ugali na sukuma for supper because they were allegedly having a "night meeting" because they did not bother to secure a police licence.

I am particularly offended by the clamour to reintroduce repression in Kenya at this point in time.

For two reasons.

 One, Kenyans are living under a new constitutional dispensation. That new order signifies a transition from the terrible National Security State to the more alluring National Democratic State, in other words, a move from FASCISM to DEMOCRATIC RENEWAL.

Why would, for instance public officers like Mr. Kimemia and Mr. Kimaiyo who have SWORN to DEFEND the Constitution flagrantly violate the Bill of Rights?

Two, and this is rather PERSONAL as far as I am concerned.

On August 4, 1982, while I was still a first year University of Nairobi student, I was abducted by the police at the Voi Railway Station and returned forcibly under gun point, to be charged with three counts of "sedition" liable up to 27 years imprisonment, BASED  SOLELY on the basis of a hand written DRAFT of an essay where I was calling upon Kenyan youth and students to stand up for democracy, justice and freedom. On the basis of those trumped up charges, a hastily convened KANGAROO court sentenced me to  several years behind bars at the notorious Kamiti Maximum Security Prison. I was tortured, beaten, humiliated and alienated. My youth was stolen from me. My education was interrupted. I became blacklisted when I left prison. I was shunned. I was forced to flee from my homeland Kenya and exiled to a very frigid continent tens of thousands of miles away where I vegetated for close twenty years!

And for what?

For drafting a student essay touching on issues of fundamental rights like freedom of expression, freedom of conscience, freedom of assembly, academic freedom and other civil and political liberties.

Onyango Oloo and hundreds of Kenyan patriots like, to name just a few, Dr. Willy Mutunga, Raila Odinga, Alamin Mazrui, Timothy Njoya, Davinder Lamba, Ngugi wa Thiongo, Micere Mugo, Wangui wa Goro, Wangari Muriuki, Chitechi Osundwa, Adongo Ogony, Oduor Ongwen, Zarina Patel, Yusuf Hassan, Abdilatif Abdalla, Njeri Kabeberi, Paddy Onyango Sumba, Mwandawiro Mghanga, Oyange Mbajah, Silvanus Oduor, Omondi Kabir and many, many, more, paid with our health, our families, our minds, our limbs, our careers, yes, some with their very lives to topple the fascist dictatorship and contribute to the emerging democratic space which is best exemplified by the promulgation of the Kenyan Constitution on August 27, 2010.

Where we the Kimemias and Kimaiyos back then?

Undergoing a DO course at the Kenya Institute of Administration or going through the recruit's training drills at the Police College in Kiganjo?

As I said in  a recent piece:

  Thirty years ago, Willy Mutunga was a detainee at Kamiti. Today he is Kenya’s Chief Justice. In 1982, Raila Odinga was just beginning his 8 year stint behind bars. Today he is the Prime Minister and has run for President three times. In the eighties my home was a tiny cell where I was a political prisoner on 24 hour special watch. Momoima Onyonka the assistant foreign minister was once locked up in D Block along with Philip Murgor, the former DPP, Kibisu Kabatesi, Mudavadi’s close advisor, Adongo Ogony the former Secretary General of SONU, now a much respected human rights activist, community worker and blogger based in Toronto, Canada.

No one should try anything funny and stupid, I muttered to myself. And I meant those dark forces of impunity who think they own Kenya who refer to themselves rather arrogantly as “Government.”
 Kenyans have been to prison and back; have wasted away in exile limbo; endured tear gas, rungus and even live bullets; the streets of Kenya are soaked with the blood of patriots who died fighting for a democratic constitution, for a new Kenya.

Let nobody in  a police uniform or a suit from a Harambee Avenue office try to scatter those Kenyans congregating at  20th Century or Jeevanjee; let no one be foolish enough to try to turn back the hands of time.

We have sacrificed too much for this country to let all those gains go up in smoke, because of a bonfire lit to tickle the vanity of myopic personal careers and vendettas.

I am primarily a social justice activist who uses my talent as a poet, writer and blogger to SPEAK TRUTH TO  POWER.

Let me end by reproducing one of the poems I wrote in solidarity with some HIV+ women on  the eve of International Women's Day in the year 2005:

 Sunday, March 06, 2005

Poet as the Embodiment of some Ukimwi carrying Kenyan Women in Mombasa

(poem composed by onyango oloo at the invitation of a group of hiv positive women living in mombasa who requested a poetic message to be read out during a special international women's day event to be held in the kenyan coastal city for this year- 2005...)

they have tried to bury us alive
with indifference, neglect, stigma and silence
but we are still alive, we the women of kenya
living positively with this ukimwi that we all fear
they have tried to discard us in the dustbins of societal isolation
dump us in the mitaros of societal marginalization
but we are still alive, still kicking and struggling
we the women of kenya living positively
with these killer virusi, surviving this deadly mdudu

in the western part of our beautiful neo-colonized country
they call it ayaki, ayaki is the monster that raids our bodies
and saps, or tries to sap our strength
oh, how this ogre, this monster is feared
and we are still alive, even as the ayaki tries to yako us
and we are still alive, we the women of kenya
living positively with this ukimwi that we all fear
struggling defiantly with this condition that terrifies us all

we are like the brave warrior sister nyaitwika from central kenya
who courageously faced the enemies of her people
staring down death, brushing off danger
saying, come and get me o you vile foe
and we are still alive, we the women of kenya
living positively with this immune depressing robber of immunity
we are still alive, fighting on, hanging on for another day

we are in an unequal battle, and our soldiers sometimes fall valiantly
in fierce combat with the cowardly robber who ravishes our essential essence
by whittling down our bodies
sometimes we get sick, sometimes we despair and very often we die
but for our children, we keep hanging on
fighting for as long as we can to stay alive
we the women of kenya living positively with this ukimwi that we all fear

on the occasion of international women's day two thousand and five
here is our message to our fellow kenyans, our fellow sisters and our fellow human beings
we are still alive, we the women of kenya living in mombasa, malindi, kilifi
lamu, takaungu, voi, wundanyi, mazeras, mariakani, kaloleni, bura, ukunda and all over pwani, we are still alive we the women of kenya living all over kenya
we need your solidarity and your concrete support
we embrace your love and your affection
we welcome your concern and your care
but we can certainly do without your pity
we can certainly do without your patronizing and your matronizing
we are not statues of udongo about to break into pieces at the slightest touch
we laugh, we cry, we eat, we sleep, we work, we play, we love, we fall out of love and back again
we are women just like other women
we are human beings just like other human beings
we care about freedom, we care about democracy, we care about justice, we care about equality
when one of our sisters is raped, we shake with indignation
when one of our aunties is violently attacked we too seek redress and even vengeance
we have men in our lives whom we love and who love us back
and when we are with them we do what other women do with their men
our lives including our love lives did not end the day we found out about the unwelcome guests who had taken over our bodies
so we still love, but we love ever so safely, ever so carefully
for if you love, you cannot purposely harm the one that you love
for if you love, you cannot deliberately maim that one that you adore
if we sat here and told you all our love stories, it would never end
and that is why in closing, we say to all the women of kenya and women of the world:

for international women's day two thousand and five
let all the women of kenya come together in sisterhood and solidarity
to support each other, irrespective of hiv status
let us not allow medical walls to separate us
we are all the grand-daughters of me katilili
we are all the nieces of wangari maathai sisters of zarina patel and cousins of micere mugo
today we say with our late spanish sister la pasionaria dolores ibaruri:
no pasaran!
no pasaran to those who block access to better health for kenyan women!
no pasaran!
no pasaran to those who hate women and their children
no pasaran!
no pasaran to those who demonize and vilify women fighting for equality
no pasaran to those who are enemies of democracy for kenyan women and kenyan men
today we say with graca machel, frelimo and the people of mozambique:
a lutta continua
today we say with winnie mandela and the people of south africa:
amandla nga wethu!
today we say with assata shakur and the african-american women of the states:
no justice, no peace!
today we say with rigoberta menchu and the people of guatemala:
el pueblo unido jamás será vencido
today we say with vandana shiva and the women of india:
mother earth and all her seeds and resources belong to the wretched of the earth!
today we say with hanan ashrawi and the people of falastin:
sexists and misogynists: yalla yalla, get out of our lives
let us push our kenyan intifada until ultimate victory for all wananchi- especially women and their children
today we say with zap mama and all progressive musicians and artists:
it is never too late to work for a new world!

© 2005 Onyango Oloo
This blog post has been composed "live" the Media Centre @ Supreme Court, while attending the hearing of the petitions challenging the declaration of Uhuru Kenyatta as President.

As those who watched on television, millions of Kenyans were rather startled with ferocity of the attacks on Maina Kiai, James Orengo and other progressive voices by members of the Supreme Court at the beginning of the hearings today.

Maina Kiai, who along with Orengo is a trained lawyer quite familiar with judicial proceedings, is in the process of making a documentary about the 2013 elections and had gone to the courts tallying area for the sole purpose gathering footage for his film when he was accosted by a battery of rather hostile security personnel who demanded that  Kiai and  his crew vacate the Supreme Court premises pronto.

Maina Kiai later told me that at the beginning of the cases a few days ago, the place was teeming and swimming with pugnacious riot police imbued with a notion that an imminent eruption of violence and disruption of peace was in the offing.

Maina and others complained of this macabre siege mentality which appeared as a throwback to the repressive  EIGHTIES not even 1990s. Talk of the criminalization of dissent....

Onyango Oloo

Wednesday, March 27, 2013