NAIROBI TRAFFIC GRIDLOCK IS HURTING THE LONG TERM ECONOMIC DEVELOPLMENT

Nairobi is the national capital with population, depending on the time of day between 3.5 to 4.5 million. It is the national focus point and the seat of the Executive Branch of Government Parliament and Judiciary that serves as headquarters of many corporates in the country. Above all Nairobi enjoys a special distinction as a host of the fourth United Nations centre besides New York, Geneva and Vienna. It is therefore a global and significant outpost with the largest diplomatic community in Africa.

Despite its international status, with an enviable and attractive climate, our infrastructure, i.e. roads, sewage system, water, street lighting need greater attention to give it status it deserves. Besides, it is the East African financial services leader, with plans underway to create Nairobi International Financial Centre (NIFC) along lines of London, New York, Dubai, Hong Kong. It houses the World Bank and IMF, as the regional headquarters for East and Central Africa.

Given the above realities, if one takes a bird’s eye view of Nairobi in a helicopter ride between 6.30am to 9.30am and between 3.30pm to 7.00pm the flow of cars is back to back and virtually all the arteries in the city are clogged as cars move at a snail’s speed. This state of affairs is extremely untenable and challenges our critical thinking on what is being done by planning and implementation authorities. One basic example is Kenyatta Avenue. From Uhuru highway to Tom Mboya Street, a distance of hardly 1km long we have 6 traffic lights. They distract free flow and serve little purpose. If we blocked entry to Kenyatta Avenue from both Wabera and Muindi Mbingu streets these traffic lights would be unnecessary. Besides, Kenyatta Avenue needs to be expanded by removing the so-called flowers and trees. However this does not seem to attract sensitivity from Nairobi City County. The whole of CBD requires fresh standard paving and re-organization by not allowing parking within the CBD to facilitate free flow of people.

Kenya must de-emphasize conventional approach for creative thinking. An example is Mbagathi road coming from Langata to Ngong road, between the hours of 4.30pm to 7.00pm, traffic is very light. On the other hand traffic from Kenyatta National Hospital roundabout at the City Mortuary towards Langata road, traffic is back to back. If we think outside the box, it is possible during those hours we can reverse traffic flow from Langata by converting to single lane and the other lane allow traffic from Ngong road to Mbagathi road all the way to Langata roundabout with proper traffic police co-ordination this change is very easy to adopt.

The road from Galleria all the way to Ongata Rongai, Kiserian, Ngong town coming back to Karen shopping centre, Dagoretti Corner and Ngong road to Kenyatta National Hospital to Uhuru highway must be dual carriaged without undue delay. We have very heavy traffic during the hours of 5am all the way to 9am and from 3.30 – 8.30 pm daily. In addition, Besides, Galleria to Karen Shopping Centre should be equally dual carriaged. Inevitably the National Government will reason out that we have no money to carry out these infrastructural projects. However commuters are paying high price by unnecessary petrol consumption which we do not produce. If we take into consideration the many hours we spend on the roads, the high costs to the nation through capital flight from purchase of petroleum products, it makes economic sense to borrow money and build these national assets now than doing it later because it will never be cheaper by waiting.

The unintended and major victims of terrible Nairobi traffic are the young school going children who spend between 4 – 6 hours of travel daily. Imagine children coming from Ngong’, Isinya, Rongai, Limuru, Machakos, Kitengela, Kajiado, Kikuyu being caught up in this traffic nightmare and the toll on them through poor examination performance besides poor health associated with exhaustion seating in traffic. This scenario is totally unacceptable for a nation aiming at being globally competitive by 2030. What is pertaining in Nairobi is coincidentally applicable to Mombasa. Our country needs to take long term view of infrastructure development not only in Nairobi and Mombasa, but across the entire country. Further, contractors awarded contracts must be made to work 24 hours. We cannot afford the luxury of waiting unless we want to live under developmental illusion.

Having acknowledged that Nairobi has a serious traffic problem, we can contrast with three cities in China; Guangzou, Shanghai and Beijing which are highly populated and yet the traffic is manageable. Two issues distinguish China and Kenya. A very high degree of discipline is observable not only among the ordinary Chinese but the police have a developmental attitude and hence everybody defers to obedience of law and order. You will hardly see behavior of overlapping associated with our matatu culture in China. The second difference between Kenya and China is impunity. In China, they don’t tolerate impunity no matter what station of life an individual belongs. The contrary is true in Kenya. In China, this cannot be countenanced and hence China today is the global manufacturing and production centre. If Kenya wants to develop fast as a key player within Africa and globally, we must resolve to be a law abiding country disciplined, clean discard impunity to attract inflow of Foreign Direct Investment (FDI) tourists etc. In addition we must embrace a sustainable culture of cleanliness as mainstreamed in Singapore, Korea, Germany and Japan. The irony is that none of these countries are more endowed with natural resource than Kenya. However they have developed a culture of hard work, high value for quality education and a great sense of national pride. If Kenyans believe in themselves, nothing is impossible.

Karanja KABAGE

ADVOCATE, HIGH COURT OF KENYA

September 10, 2015

IS KENYA LIKELY TO MIRROR GREECE? A SCARY SCENARIO

Two things distinguish Greece from probably the rest of the world. Number one it is the cradle of modern democracy and two, it produced great Philosophers such as Plato, Socrates and Aristotle. That was many centuries back. How about today? It is simply the sick man of Europe (financially) requiring bail out.

On August 5, 2010, three academics Costas Meghir, Yale University, University College London and IFS, Dimitri Vayanos, London School of Economics, Nikos Vettas, Athens University of Economics and Business, authored an article titled “The Economic Crisis in Greece: A time of Reform and Opportunity.” This is found at www.greekeconomistforreform.com

I recommend it for reading by policy Architects, Practitioners, Academics, Parliamentarians, and Economists Social Scientist etc. It gives a very good background of why Greece is in the state it is today, requiring a bail out by European Union, European Central Bank and the IMF. It also speaks to issues of corruption regulations and retirement pension challenges, that Kenyans can and must relate with.

According to the article by 2009 Greek’s Government debt as a percentage of Gross Domestic Product (GDP) was 115.1%. Fast forward, to 2015 it is now at 175%. In a nutshell, Greece has had unsustainable consumption pattern and a general lack of competitive, investment climate entrepreneurial environment and a serious tax evasion culture.

Where does Kenya fit in into this scenario?

Whereas Greek has had its European brethren as a fall back, Kenya has none. However against the background of the 2010 Constitution we have created a never ending demand for consumption and little investment in the fundamentals of productive infrastructure.

With our 2010 constitution, we created a plethora of money guzzlers in form of Constitutional commissions and independent offices, very elaborate legislative system and extremely liberal Bill of Rights. Almost six years into the new Constitution we have began to witness dangerous tendencies for insatiable spending without concurrency in income generation.

The above is being informed by budget deficits and hence debts (borrowing externally and locally) as reflected by a total of KShs.570.2 Billion, representing 28.49% of the total 2015/16 Budget. What is the consequence of this? We have gone into a spending spree, in a similar fashion that prevailed in Greece from 1980 through the last 35 years period. In Kenya, the speed at which everybody wants to spend and especially the elected (legislative) leaders and now the Governors’ Pesa Mashinani as advocated by Country Governments and Okoa Kenya Movement is alarming. Everyone is competing with each other in the scramble for consumption. Unfortunately if we do not reflect on the end game of this maniac demand for spending without addressing the real source of income, as a Country, we are headed for a painful lesson indeed, if not a catastrophe.

A close examination of the 2015/2016 financial projections by the National Treasury, our external borrowing is KShs.340.5 billion which is equivalent to the 16.98% and a further domestic borrowing KShs.229.76 or 11.47% of KShs.2,001.6 Trillion Budget respectively. Our Recurrent Expenditure is projected at 39.18% vis-à-vis 35.79% of the Development expenditure, with the Country Budget Allocation at KShs.264.2 Billion or 13.20% of the financial projections 2015/16. Significant to note is that interest payment on previous debts and pension amounts to KShs.185.3 or 9.26%.

The total amount from ordinary revenue (tax) is only KShs.1,254.9 Trillion representing a total of 62.7% of the macro Budget. This scenario must be watched very carefully because, if our generation of domestic revenue is not accelerated, it will set ourselves on a borrowing mission, which is predictable, and sooner than later Kenya will be in a worse scenario than Greece!

The grave consequence will mean turning to expensive multilateral borrowing from external institutions i.e. as IMF and World Bank, (it’s an American Bank according to John Perkins, the author of “The Secret History of the American Empire”). This will be coupled with further bilateral borrowing with conditionalities whose social and economic disorder will herald a period of upheavals and stagnation.

National Conversation 2018

Despite the promulgation of 2010 National Constitution, there are apparently many thorny issues that need addressing moving forward. I suggest a National Conversation to take place from June through September 30, 2018 to be Chaired by the elected President, Co-Chaired by the leader of the opposition and the Chairman of Council of Governors while the Speakers of the Parliament will be the Co-Secretaries.

Why in 2018? This is because as of now, we don’t know who those leaders will be but we are certain of Kenya’s Agenda. This will insulate the Conversation from political intrigues of today and 2017 general elections.

However, in 2016/2017/2018, we must allocate a budgetary provision for the expense for the National Conversations. It must not be funded by either the NGO’s or the so called Foreign Donors but by Kenyans themselves. Why? It is our Agenda for which we must be willing to sacrifice.

Finally, it is my belief Kenya is perhaps a thousand times potentially more prosperous than Greece. We have the capability to be not a dot in the World Map but a great Nation. The conversation will define that which we want for the next 50 years and beyond. To achieve this, both Kenyans and its leadership must take a mental flight and chart a course into the future devoid of pettiness.

Karanja KABAGE

ADVOCATE, HIGH COURT OF KENYA

June 23, 2015

A HISTORIC PARALLEL TO KENYA’S DRINKING PROBLEM

The background against which the Anglo-Chinese opium I and II Wars of 1839/1842 and 1856/1860 were fought was due to flooding of the opium by the British Merchants to China from India.

The proliferation of opium into China had the effect of drop in price, local consumption increased rapidly and the drug penetrated all levels of society. “This had a devastating effect on the general Chinese population while local officials profited greatly from bribes and taxes involved”.

Fast forward to 1920 when the US drinking problem had its toll on America citizens. This necessitated the country to effect Eighteenth Amendment to the Constitution under Volstead Act which prohibited the sale of alcohol. People like the late Joseph P Kennedy Sr, the father of the late President John F Kennedy, is alleged to have made money in bootlegging the illegal importation and distribution of alcohol during the prohibition. This prohibition was “Successful in reducing the amount of liquor consumed” but had the unintended consequence of increasing “rampant underground organized and widespread criminal activity”. However on March 22, 1933, President Franklin Roosevelt signed into law the Collen – Harrison Act legalizing beer with an alcoholic content of 3.2% by weight. Eventually on December 05, 1933, ratification of the Twenty –First Amendment repeated the Eighteenth Amendment to the Constitution.

Drinking as is being witnessed in Kenya and indeed many countries in Africa i.e. South Africa, can equally draw another lesson from what is happening to Native (Red Indians) Americans in US and the aborigines in Australia. They are slowly and surely heading to extinction because of widespread drinking to the extent they now live in exclusive reserves and literally don’t participate in the normal economic, Social and political lives of their Counties.

In the very recent past, there has been awakened ‘consciousness’ on the part of the Kenyan leadership to deal with an already dire situation of crippling effect of drinking by both young and old in parts of Kenya. The object is noble but the wherewithal raises legal questions on the methodology of eliminating the drinking sources.

When a nation subscribes to the rule of law and due process, it becomes important not only to think of the future but also the means through which we achieve that which we desire. The mechanism of dealing with the alleged offences against the law must always be lawful. Why? Our constitution under Act 40 on the protection of right to property covers right to acquire and own property (a) of any description and (b) in any part of Kenya. The critical fact to note is that to the constitution there is no difference between a bicycle owner and the owner(s) of multimillion shilling BAT plant! Property is property and the government must protect the sanctity of the bicycle as much as it protects the BAT plant.

Honorable members of Parliament have done a ‘commendable job’ in destroying what are supposedly illegal and illicit drinks! However they have no police powers and hence their actions, though well intentioned is outrightly unconstitutional and illegal. Illegality cannot correct illegality, period! In the preamble our Constitution states that, “We, the people of Kenya, recognizing the aspiration of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law!” Therefore every Kenyan is indeed enjoined to observe this very important principle of our constitution. Any transgression of any law of the land by anybody is an affront to civilized conduct and must be met with lawful means. This is the only way we can always be safe and proud of being Kenyans when we live in the knowledge that every Kenyan is subordinate to the law.

If we seriously wish to address this problem for ever, we must go back to the basic. First the work of dealing with any criminal activities is within the perview of the National Police Service. Vigilantes have no place in a civilized society by whatever description.

Why? If allowed, this is the fastest way of creating an anarchy. The government must be resolute in enforcement and adherence of the rule of law. Those charged with the mandate of maintenance of law and order must discharge their duties and if they fail, there are legal channels to provide immediate sanctions. The courts must discharge their duties too without delay. In other words, every arm of Government must execute its role within the law and with justice always in mind.

However, let us all be alive to the dire consequences to individual, families, communities and the nation in general where drinking reaches catastrophic levels. The effect to pro-creation, productivity, social cost and above existential threat are both devastating and real. Therefore no nation can be blind to these consequences nor can any sensible citizen can fault its government for taking all legal means to address this threat. The proportion we have reached, it will require long term strategy and co-operation of the entire citizenry. The challenge is not individual, community, political or party specific hence nobody can claim immunity nor celebrate the suffering of a people. We are all in it together.

Karanja KABAGE

ADVOCATE, HIGH COURT OF KENYA

GLOBAL REFUGEE CRISIS, A MANIFESTATION OF MAN’S INHUMANITY TO MAN

We are witnessing refugee crisis reminiscence of the World Wars I and II when thousands of refugees, mainly in Europe became a phenomenon. The Universal Declaration of the Human Rights recognizes the right of persons to seek asylum in other countries. Subsequently the 1951 Refugee Convention relating to the status of refugees was adopted in 1951 as the centre piece of the International Refugees while 1967 protocol removed geographical limits thereby creating universal application to the refugee everywhere.

By definition, the term refugee refers to protection of persons from political or other forms of persecutions. A refugee therefore is anyone who is unable or unwilling to return to their country of origin for reasons of persecution from race, religion, nationality, membership of a particular group or political opinion. In other words, the convention provides for application without discrimination as to sex, age, disability, sexuality or other prohibited grounds of discrimination. This provides that refugees should not be penalized for their illegal entry and stay in other countries which literally means refugees can breach the immigration rules without arbitrary detention purely on the basis of seeking asylum.

It should however be appreciated that the 1951 convention does not apply to those accused or alleged of having committed war crimes, crimes against humanity, serious non-political crimes or acts against the purpose of 1951 convention. There is only one exception, it does not apply to those refugees who benefit from the protection or assistance of the UN Agencies such as refugees from Palestine who fall under the United Nations Relief and Works Agency for Palestine Refugees in the near East (UNRWA) nor does the convention apply to the refugees who have a status equivalent to the nationals in their country of asylum.

Lately humanity has been faced with unprecedented inflow of refugees mainly from Syria, Iraq, Afghanistan, Eritrea, Nigeria and thousands from Libya. They are all fleeing to Europe through Italy, Greece and Turkey. This has meant due to the means and condition of their travels, literally thousands have died while on board unsafe boats in the Mediterranean sea. To make matters worse as has been widely covered by media and international news networks, there has been luke warm reception of refugees in Europe. The suffering of the old women and children was unfathomable literally five years ago but since the onset of the so called Arab spring and the wars in Syria and Iraq, there has been unabated flow of refugees.

In Europe, to observers of humanitarian and international human rights, this has been one of the worst examples in treatment of human beings since world wars. Europe is responding in the most unkind inhuman and insensitive manner despite the fact that through a UN Security Council sanctioned resolution, Muammar Gaddafi was removed from power through expeditionary airstrikes, without pausing or thinking what the consequences of the invasion meant to Libyans and other nationals working and living there. Clearly this is a reflection of failed Western countries’ strategy and management of the unfolding human catastrophe given the flooding of refugees. Western countries, especially Britain are pretending that the refugee crisis is an accident and hence do not take full responsibility for the failure of their application of technology of violence against the Libyan people.

More tragically I have not heard a chorus of sympathy for the affected refugees and asylum seekers by the international community. We are acting with indifference and as a global citizen one wonders why there is no serious debate on condemnation for the suffering of thousands if not millions of refugees? Has humanity become so heartless that the problem is so far out of our reach despite the daily images on our screens? Recently over 70 bodies of refugees were discovered dead inside a refrigerated car in Austria all because some European countries are shutting gates/borders of their countries to these desperate fellow human beings!

It is my conviction this is the greatest global collective shame today. I call upon the UN Secretary General to mobilize the human race to at least begin conversations to eliminate the human suffering. Europe has a moral burden and so does Qatar, UAE, Saudi Arabia, Iran and other countries in the region to provide the resources and the wherewithal to relief the suffering of fellow human beings. What we are seeing today is nothing but a manifestation of man’s inhumanity to man.

The 7 billion plus human beings, we are all potential refugees, whether as presidents, prime ministers or fellow ordinary human beings. The distinction is in the degree and when! But every country is potentially either a source of refugees or a sanctuary. As long as one person out of the billions isn’t safe, we all are unsafe. In the meantime, if the 21^st century architects of tyranny were condemned and held to account for the unfold suffering and the loss of hope for the millions the refugee crisis would not be there. We must stop keeping quiet and stand up for the refugees!

Kenya has been host to literally thousands of refugees and asylum seekers from Burundi, Rwanda, Uganda, South Sudan and for over twenty years to those fleeing from war torn and strife stricken Somalia. Kenya therefore continues to discharge its international obligation as a haven for refugees. But Ironically, Kenya has the infamous distinction of having Internally Displaced Persons (IDPs) as a result of politically and ethnically instigated killings and destruction during the 2007/2008 post election violence. To this day, there are Kenyans who live as though they are foreigners in their country while in the past they lived prosperous and dignified lives but today they are languishing in poverty while the majority of us are indifferent, don’t know or even don’t care. I hope and plead with fellow Kenyans of good to learn from what is happening in the Middle East and Europe and resolve to follow the wonderful examples of our athletes who have demonstrated to the entire world at the recently concluded World Athletics Championship, Beijing August 20 – 30, 2015 that Kenya is a drum major for global championship in the best of human kind. Hence we must be committed to live in peace and take advantages of abundance of opportunities to advance human cause. We must hurt for and care for one another. Our potential is insatiable to be the best country in the world where every Kenyan born and unborn, including foreigners and refugees, can and must call home.

 Karanja KABAGE

ADVOCATE, HIGH COURT OF KENYA

September 4, 2015

ARE PARLIAMENTARIANS AND MCA EVERYTHING TO EVERYBODY IN KENYA?

1976 I watched the then Governor Jimmy Carter and President Gerald Ford of US debate domestic policy issues and I have never forgotten the words of the late President Ford.

He said in reply to a question by the moderator of the debate that “A president cannot be everything to everybody but has to be the same thing to everybody!” That was not only profound but it clearly manifested itself when in November 1980, the then Governor Ronald Reagan, resoundingly defeated President Jimmy Carter with the largest Electoral College defeat of a seating President. Carter, when he became President, made efforts to be everything to everybody. He however remade himself after he left office. What then is the lesson to Kenyans when we look at the current going-ons in the clamor by our political class, especially legislators, who want to directly manage public funds and hence boost their popularity with electorates!

The Constitution in Articles 202, 203 and 204 on Equitable sharing of National Revenue, Equitable share and other Financial Laws and Equalization Funds respectively provides for the National and County Governments in discharge of public service. In addition, under Devotion and Access to service, the drafters of our Constitution intended that matters to do with expenditure and development are functions to be exercised by both the National and County Governments in accordance with the distribution of functions between the National and the County Governments.

What is then the issue? There has been unprecedented demand for allocation of resources to Constituency Development Fund, where the Court has already pronounced itself on the illegality of the fund, 47 Women Representatives Members of National Assembly (WRMNA) Fund in excess of the KShs.2 Billion, and a KShs.2.5 Billion fund for MCA while the debate on whether the Senators will be allocated development fund of over KShs.2 Billion is still ranging.

What is informing this growing disregard for the doctrine of separation of powers? Do we really understand or even appreciate that there is a big difference between the executive branches of governments, represented by the National and County Governments on one hand and the other Parliament and County Assemblies as the Legislative and oversight bodies? This was the essence of our new Constitution when Kenyans determined the responsibilities and functions between the two distinct branches of Government with the Judiciary playing the role of an independent arbiter in case of either interpretation of the Constitution or in resolving disputes!

More importantly the Constitution mandates the Auditor General to audit expenditure of public resources in an accountable and transparent manner. This is crucial because two key Committees of Parliament are Public Accounts and Public Investment Committees, and their reports are informed by the findings of the Auditor General. This is against the background of Auditor General’s role in highlighting any acts of either omission or commission in the expenditure of public resources through use misuse or mismanagement.

The current scenarios where legislative bodies are being allocated funds is contrary to the intention and Spirit of the Constitution. Kenyans must together voice their objection to these violations whose eventual implications is likely to be very detrimental to the accountability principle. Under the circumstances, there is no way MNAs, WRMNA, MCA and even Senators will offer oversight against themselves when findings of the Auditor General indict them. The Kenyan tax payer will therefore be left without a watchdog over their money. As the Baganda proverb states “Monkeys must not be allowed to determine who lives in the forest. Why, they are interested parties with territorial ambitions.” Equally MNA, WRMNA, MCA and Senators are interested parties with serious conflicts of interest.

 

Taken to its logical conclusion, our Legislators cannot therefore be expected to hold themselves accountable for their mistakes especially with respect to the misuse and abuse of public funds they are directly involved in managing and or supervising expenditure by people they have either appointed or helped elected to the development committees.

We are opening the floodgates of unstopped and insatiable corruption which ultimately will consume this Nation. That is why we state to you, Mr and Mrs Kenya’s elected leaders, we cannot afford this level of compromise and contradiction in the management of Nation’s affairs. Only the President and Governors have the constitutional mandate to spend public resources for public good. Your duty is to legislate and overnight these governments. The maximum expectation from Kenyans is for legislators to be proactive in lobbying the National and County leaders for resource allocation on specific projects implementations which are mainstreamed in the approved budgetary provision. This is a global phenomenon and Kenya is no exception.

Kenyans must insist that leaders go back to the basic legislative roles and faithfully adhere otherwise we risk disruption to orderliness of governance due to lack of accountability and transparency in the affairs of public expenditure. Meantime, I urge greater participation and enlightenment of the citizens in applying the opportunities like the enforcement of Bill of Rights and the Constitution in guaranteeing the constitutional probity and order. If we defocus our attention and fail to be vigilant, parliamentarians and members of County Assemblies will play the Russian roulette on Kenyan lives, which is potentially a dangerous undertaking likely to bequeath financial burdens to both the present and future generations and collectively affect our common destiny.

Karanja KABAGE

ADVOCATE, HIGH COURT OF KENYA

July 07, 2015