I PRAYED FOR YOUR 2013

I always try poetry,

In the depths of my being, when I need to pour the truest of my soul, to the fields of men

Today, in the stillness of time, I thought I would make a prayer,

And yet, for my soul prays for me by day, the prayer would not be for me,

And yet, for the prayer would not be for me, it could only be for you,

You my friend, for in such a seclusion, my soul can only speak to those it knows,

And it knows your face, for we share smiles and frowns

And it knows your heart, for we share fears and hopes

And so, I prayed

 

I prayed for your well being and for a reflective day,

That when, you think of times past, and find the many folds I have erred,

That when, you see yesterday, and see tears I brought

You will forgive me, and bequeath me a smile for days to come

And that, I will smile away your mistakes too, so that

When the glitter of tomorrow starts, we shall be united by the glow

Of our faces

I prayed for an expansive 2013,

Where your dreams will be realized and your fears trounced

Where the world, will give way to your hopes,

I prayed for the safety of your body and heart

And the wellness of your mind

I prayed, for your greatness

And hoped that the strength of being valued shall be with you,

I prayed, that the beauty of your heart be enhanced,

With the pellets of my love, care and concern

And prayed for your undying smile

 

And next year, friend

Allow me the cherished chance of being your friend,

And I promise, to whisper into your ears the need to persist,

To dream, to try and to soar

 

I prayed for your 2013.

 

Happy 2013

From my Heart, hope yours takes it.

 

 

Thank You for Supporting Me in 2012

Hey My Reader,

Your Support has been invaluable in 2012. We have reached over 25000 people. Exchanged Ideas, criticism but in all, shared the spirit of opened and reasoned exchange.

I wish you the best in 2013 and trust that we shall continue to engage constructively.

The WordPress.com stats helper monkeys prepared a 2012 annual report for this blog.

Here’s an excerpt:

4,329 films were submitted to the 2012 Cannes Film Festival. This blog had 23,000 views in 2012. If each view were a film, this blog would power 5 Film Festivals

Click here to see the complete report.

MUSINGS WITH SELF: CHOICE

 

Choice

Choice

” I consider my opinion as one that furthers the true concept of free will. Why would I dare say that? Free will and responsibility are not inconsistent concepts. And my view excludes nonchalance from choice, it emphasizes that choice need be considerate when being exercised. It acknowledges that our individual prejudices cannot find a place of unrestrained expression in a society, and that as civil people, we necessarily have to acknowledge our obligation to collective existence.”

It’s barely 20 minutes past six when I reach the 8th floor of this massive centre seated in the Prime Upper Hill area of Nairobi. I prefer being in office as early, in part to dodge a traffic snarl-up on Nairobi roads, but as well in conformity with an established tradition of starting my days early, started in High school.

I always take a minute to gaze at a city beneath me once in office, Nairobi sprawls before my eyes with an ambitious gait, in part showing the resilient spirit that makes Kenya, in part motivating my own struggles.

Today as I gaze out, I am unable to see Nairobi. It is quite foggy, but my sight is just as clouded by a sight of a small lunch court that is barely 100 meters from where I am, Sheeben, as by the fog. Sheeben has housed me for lunch quite often, not that I have come to like it as my mum’s kitchen, but it reminds me of a nagging conversation that there began a week ago.

We were discussing politics, no, the concept of choice and its politics.

Choice is a concept central to human existence. It gives people a chance to self express themselves, to exercise inalienable power of determining their lives. Choice, is what gives human life its taste, it’s the provenance of laughter and tears. When we triumph, we exalt ourselves knowing we chose rightly. When we fail, we pinch ourselves.

I would even equate choice to freewill. That sacred aspect of being that is incomprehensible, where man, though subject to restraint by nature or God, still errs with impunity, undeterred by that nature or that God.

In the talk, was Mungai Munene, my readers will know him, he has been subject of many of my of late writings, Jackson , an advocate and Ivy, an advocate to be and my senior in college.

It was Ivy’s opinion that the hallmark of civility is ability to respect choice without question, that a construction to the contrary breeds intolerance. In her opinion, a civil man, and tolerance is an attribute of civility, should respect the choice of others as he would like their own to be respected. That necessarily that respect extends to the fact of not questioning.

At that time, I did not know whether I disagreed with her, but she disagreed with my opinion. My opinion was that, choice, its sanctity notwithstanding, should always be true to the fact of collective existence. I meant that we have to tamper our choices with the reality of our being together or rather, that we need to conform our choices, just as to our responsibility to that collective existence as to our individual beliefs.

I must say relieving this discussion has revealed inherent inconsistencies within my own thinking. I published an essay, Letter to life, whose gist was a wish that life could allow me to chip my own space in the solid of existence. I silently condemned, life’s agents for expecting me to follow streams of tradition, but still, within the essay, I acknowledged my responsibility to collective existence.

Our two views are justifiable. Ivy believes in purity of choice, I doubt whether any of my beliefs suggest a contrary, but we certainly differ when it comes on just what should guide our choices.

What made me think deeply about this whole thing is the fact that I believed in what she said, yet we could not agree. It is characteristic of lawyers to, but an issue so fundamental could not be so incoherent. I almost thought I did not know myself.

The word Choose, is adopted from the French word *choix, or the older *choiswhich traces its roots from a German word *keus.

Keus has a relationship with the modern word English word gusto which is a latin derivative; I gave up any further tracing of the word, linguistics shows extreme interdependence of human civilizations.

To the extent of my etymological escapades, I could reasonable deduce that choice exits with preference and enjoyment or appreciation.  It was almost as though there can never be such a thing a painful choice. That whenever freewill is negated, the concept of choice becomes nonexistent and coercion sets in.

Well, our discussion was about choice, or rather the politics of choice. The extension of my view would mean that if we have to tamper our choices with the reality of our collective existence, then that is an acknowledgement of our obligation to others and we consequently empower others to question our choices.

In my two colleagues’ views, that is what intolerance is.

Let me shift the discussion from its abstractness to the practical premises of our discussion. Jackson opined that in a democracy expressed by a vote, it is his right to choose however he wants, and if that choice is influenced by tribal preference, then let it be. He said, and I paraphrase: you should learn to live with your choices and let others live with theirs.

On the other hand, since I believed that our choices need conform with the reality of our collective existence, even though I am obliged to respect ones choice, I have a right to question it and they should either justify it, or consider reconsideration.

And where it involves choice of government, where my will need be as worth as another’s will, I have an inherent right to question the basis of alternative choices. In my view, this is not intrusion; rather it is an acceptance that we need not hold onto ideologies that disadvantage our collective existence in the guise of personal choice.

Civility therefore, lies not in another person’s ability to live with your idiosyncrasies, prejudices and what have you, but in your ability to account to collective existence. That is your actions resonate with what is necessarily good and right for collective existence.

This, in my view does not negate freewill. It would be a negation of free will, if my opinion required ones choices to conform to conventionalities. That we should go with what is generally accepted as good.

I consider my opinion as one that furthers the true concept of free will. Why would I dare say that? Free will and responsibility are not inconsistent concepts. And my view excludes nonchalance from choice, it emphasizes that choice need be considerate when being exercised. It acknowledges that our individual prejudices cannot find a place of unrestrained expression in a society, and that as civil people, we necessarily have to acknowledge our obligation to collective existence.

Well, I am sure Ivy will counter my opinion, perhaps clarify her stance. But if I have to recoil to elections and choice, I will ask a question: Does the electorate really ‘choose’ their leader?

The Inadequacy of Kenya’s Coalition Law

HARMONIZED_DRAFT_CONSTITUTION_2009

“While Kenyan politics completely lacks any ideological deviation, and it would have been thought that such would facilitate easy cooperation, individual egos are central to political quest that attempting to build a lasting coalition is like attempting to standardize personal interests.”

 

The Kenya Constitution 2010, immaculately promulgated on the 27th August 2010 was a culmination of a two decade struggle heavily informed by a quest for good governance. Indeed, a bulk of provisions in the constitution targeted to curb imperfections in our past systems.

The Constitution dedicated a great deal of effort in attempting to provide a streamlined structure that was meant to reshape our political and governance mechanisms. Consequently it has provisions on matters of integrity, representation and party disciplines.

A new injection in the Kenyan Political landscape is the requirement in the Constitution that a winning Presidential candidate must obtain fifty plus one percent of cast votes and an additional requirement of at last 25% of votes in more than half the counties.

This requirements coupled with current political realities have fueled talk of political coalitions in the country. Indeed, cooperative politics is not an entirely new concept in Kenya. In 1964 the first political merger in Kenya occurred between KANU and KADU. This was indeed a tougher merger in my opinion since there was a clear ideology and constituency difference between the two. KADU sought federalism while KANU advocated for a unitary state. KADU drew its support from communities eclipsed by the major ones in KANU. Equally, in the post independent politics, politicians seem to have had clear opinions on the path the nation should take.

There have been subsequent cooperation, some amphibious and incapable of being classified as either coalitions or mergers. The uniqueness of our cooperative politics is not the only peculiar thing, but some of these unities have brought together truly strange bedfellows. For instance, after 1997, it was unimaginable that Raila Odinga’s NDP could merge with KANU with the shadow of suspicion looming in the past. NARC was a merger of various political parties and so was PNU.

Then there is the reality of the Grand Coalition Government whose term will come to an end in 2013. I am incapable of discerning whether it is a coalition from any sense whatsoever or union unique to our Kenyan circumstances.

Several political coalitions are rumored to be in the offing. Yesterday, Munyori Buku, Uhuru Kenyatta’s Spokesperson intimated that a ‘deal’ had been finalized between TNA and URP. While the statement was later hurriedly rescinded, it is not lost on observers that URP merely wanted to make the announcement a juicy affair.

On other frontiers, the Wiper Democratic Movement and the United Democratic front has also been engaged in negotiations. ODM and the Wiper party representatives have also met and deliberated.

While these deliberations are fine, and in a way welcome to avoid polarity in our politics, The Country has to interrogate the frameworks, legal and otherwise within which the coalitions are being concluded.

In particular, there are serious questions as to the implication of these pacts on, the stability of consequent government, other laws inclusive of the Constitution and the guarantee to respective Coalition partners.

Apparently, informed by the dishonored pact between NARC bigwigs, the drafters of The Political Parties Act 2011 provided in Article 10 that political parties may form a Coalition either before or after the election. The coalition agreement must be deposited by the Registrar of the political parties at least three months before the election or 21 days after the signing if it is an after election pact.

The Act also contemplates political mergers but this option is not viable as a merger would necessarily dissolve the individual parties necessitating the lengthy registration requirements.

While the depositing of the pacts with the registrar is intended to give some sort of legitimacy to the agreement, there are extensive deficiencies in the law and practice of coalition building in Kenya.

These deficiencies include: Enforcement mechanisms, Implication on other laws of the country and regard to political realities around the touted coalition building.

The Enforcement Mechanism:

This is necessary to assure the confidence of the partners, assure the stability of the consequent government and the general political stability in the country.

The mechanisms contemplated in the law include the fact that the coalition agreement shall be deposited with the registrar of the political parties and The Political Parties Dispute Tribunal established under article 39 of The Political Parties Act.

The tribunal is a quasi judicial body with members appointed by the Judicial Service Commission. The members are a chair, required to have such qualifications as a High Judge and four other advocates of the High Court all serving on a part time basis.

As such, the resolution mechanism is temporary, perhaps so proposed with an assumption that political wrangles cannot be in existent all year round.

The Tribunal however is only secondary to internal party dispute resolution mechanism. The Tribunal is empowered to determine disputes between members of a political party, between a member and a party, between political parties, coalition parties and appeals from decisions of the registrar.

Appeals shall lie from the decision of the Tribunal to the High Court on points of law and facts and on points of law to both the Court of Appeal and Supreme Court.

The enabling statute fails to give the exact reliefs that the tribunal may render. Perhaps, this is since relief in political disagreement is rather indeterminate.

The reality of practical politics makes the tribunal but a mediation committee. I am unable to foresee any possibility that the tribunal can make a determination adverse to the interest of one party, say in a coalition and have that determination respected.

This is since, perhaps unlike in contract law, where parties have determinate obligations mutually agreed and enforceable, political pacts are based on interest and change of interest will necessarily mean change of terms of engagement.

Being an association of trust, the tribunal lacks a logical mandate to ‘determine’. And if it does, it lacks a mechanism to ensure that its determination is upheld.

For instance, if a Coalition partner was to sue claiming that their share of positions have not been met, and in the opinion of the tribunal indeed that pre-agreed has not been met, and the tribunal issues an order that it be met, and the coalition partner refuses to meet that share, what would follow.

The law provides that such orders be enforced like court orders, but I am unable to imagine a party official being arrested that as a coalition partner it has not given the agreed share to its colleague.

While someone else would argue that in such a scenario the parties would find recourse in political tact such as non cooperation, what happens if the other parties in parliament support the wronging partner?   This leaves the affected partner without any assured security.

The appeal process suggests that partners may seek redress in courts. This provides dual risks. While the litigation progresses, government programs may be ground and the major risk is the politicization of the court system.

Political feuds should rarely find their way into courts if public confidence in the judicial system is to be found.

In democracies that have had successful coalition building, recourse mechanisms heavily lie in the internal party organs.

While indeed comparing a country like Kenya and say Germany provides real difficult, a firm internal structure, respected by all partners would be the only sure guarantee. In other words, a political disagreement can only be resolved effectively by an agreement between disagreeing partners and not directives of an external tribunal.

The political culture in Kenya does not offer any reason to the fact that parties can build such capacity.  Let us regard TNA and URP for instance, the parties themselves are infant barely with recognizable structures. They neither have elected officials, or for that matter officials who command member respect.

I wonder whether Ole Kaparo can sit down with Sakaja to solve a party dispute. This lack of internal instruments poses a truly great risk.

Interestingly, The Law actually requires the parties themselves to determine the procedure of appeal to the tribunal. This would mean that all parties would have to agree that they are incapable of resolving the problem. What happens if one party feels so and the other contests otherwise?

Would it have been prudent for the law to determine when a dispute shall be seen as incapable of being resolved by party mechanisms to avoid the possibility of deliberate delay by one partner.

Implication on Other Laws

The effect of coalition would be to foster cooperation, in our case I content that the main aim of the coalition building is to obtain political power.

The law but states that political agreement shall be deposited with the registrar of political parties; this is an extra ordinary assumptive provision.

It assumes that the agreement as drafted shall be in compliance of all law and legal provision. The law does not require the Registrar to interrogate the provisions of the agreement; it does not require disclosure of the contents of the agreement nor does it state what happens if the contents conflict or develop a law.

For example after the 2005 referendum, calendars in the country displayed speculative position sharing agreements. Some of the agreements showed two deputy presidents, two deputy prime ministers and what have you.

This never materialized, but what happens if such a scenario plays out in the current situation. The Constitution contemplates only a single position of a deputy president, what if in the seclusion of the agreement, partners agreed to create a second position of a person designated deputy president.

I do not see any law that contemplates such a situation, would the MOU be capable of restructuring legally established government structures? Would it be necessary that such an MOU be given a force law through an act of parliament? Would it be blindly adopted?

The Political Parties Act requires that the agreement indicate modes of coalition dissolution. This is indeed true, but what would be the effect of that dissolution on the Presidency for instance? What happens if the parties say that dissolution of the coalition means dissolution of government?

Neither does the constitution nor any other law contemplate exit of a president through such a mechanism.

Consider the National Accord that establishes the current government, it was entrenched in the constitution with effect that dissolution of coalition means dissolution of government.

These coalition provisions also assume a lasting internal party harmony. What would be the effect, if a political party suspends its head who for instance is a deputy president and claim his removal from office, or seek their substitution because it is essentially a coalition of parties and not individual candidates?

There needed to be clear legal provisions beyond coalition agreements. In Germany for instance, coalitions notwithstanding, it requires a vote of no confidence, only by the Bundestag to replace the chancellor.

Political Realities

Successful coalitions would ideally be built around policy issues as this is much a longer goal than the need to acquire power.

For instance, the World Bank lists Kenya’s Water Sector reforms as one of the most successful coalitions in the entire world. According to the World Bank, “Because of a clear focus on the major issues in the country’s water sector, the political momentum created with the incoming government in 2003, and the renewed interest in water by the government’s development partners, a coalition coalesced around reforms.

The above illustrates the need for a consultative, well thought process. In the case of a political pact, in the Kenyan scenario, the main stakeholders would be the electorate and their attending interest.

The reality of our politics is that constituencies are pawns in political bargains, rarely is there true regard to varied interest.

While Kenyan politics completely lacks any ideological deviation, and it would have been thought that such would facilitate easy cooperation, individual egos are central to political quest that attempting to build a lasting coalition is like attempting to standardize personal interests.

We can safely assume that policy as a matter of grounds for Kenyan cooperative politics is nonexistent. And we remain with the fact of power balance.

While in the drafts that will be deposited at the Registrar’s desk there is likelihood of beautifully curved policies, the key thing is position haring.

One thing is clear though; there is only one assured position; that of Deputy President. The other positions are speculative, out of effective control of cooperating partners. Would failure of delivering such positions as speaker, majority leader be a breach of the coalition?

A position such as speaker is dependent on individual members of parliament casting votes in secrete. It is impossible to assure that elected MPs, some unknown to party leaders, some in parties for convenience rather than principle would remain faithful to these pacts.

And by the way, giving binding oaths is illegal in Kenya.

We need to serious think about these realities as a nation if we are at any chance anticipating a stable political environment.