Nairobi Law Monthly - - Contents - CHARLES KHAMALA & AN­DREW MEL­LON

- Three saleint con­straints to con­sti­tu­tional land so­lu­tions - Will Africa le­galise bhang or are we just get­ting high?

The 2013 in­ter­gen­er­a­tional power-trans­fer to con­ser­va­tive prog­eny re­tained the political lead­er­ship and with it, the over­ar­ch­ing prob­lems of ‘in­abil­ity to think’ cor­rup­tion and hu­man rights

In agrar­ian economies, the key prop­erty in ques­tion is land, the pri­mary means of pro­duc­tion. Some land own­er­ship schol­ars on Kenya, such as Per­petua Karanja, Akinyi Nzioki, Parker Ship­ton and Mitzi Go­heen, re­ject the no­tion of col­lec­tive own­er­ship in cus­tom­ary land ten­ure, ex­cept for lands with par­tic­u­lar cul­tural func­tions. They point out in­stead the sys­tem of in­ter­sect­ing, multi-lay­ered rights, which grants var­i­ous rights or priv­i­leges in the land to myr­iad mem­bers of the fam­ily, clan, etc.

Even as­sum­ing that their stud­ies are sta­tis­ti­cally sig­nif­i­cant, what value is “own­er­ship” with­out “ac­cess?” Thomas Sikor and Chris­tian Lund show that “peo­ple may hold for­mal prop­erty rights to some re­sources with­out hav­ing the ca­pac­ity to de­rive any ma­te­rial ben­e­fit from them.” They ar­gue that “peo­ple lack ef­fec­tive rights if such rights are promised in law by cus­tom but de­nied in prac­tice. This is where prop­erty and ac­cess over­lap par­tially; prop­erty rights may not trans­late into ‘abil­ity to ben­e­fit’, and ac­cess may or may not come about as a con­se­quence of prop­erty rights.” No­bel lau­re­ate, econ­o­mist Amartya Sen’s “ca­pa­bil­i­ties ap­proach” con­trib­utes to the con­cept of famine, poverty and de­vel­op­ment. His hu­man rights as “recog­ni­tion of some im­por­tant free­doms” em­pha­sises widen­ing peo­ple’s op­tions to live pro­duc­tive and cre­ative lives “that…. peo­ple have most rea­son to value.”

Most ru­ral African peas­ant com­mu­ni­ties dwell on com­mu­nal land and live their daily lives ac­cord­ing to cus­tom­ary law, which lacks a profit-mo­tive or self-max­imis­ing tra­di­tion. Be­cause our econ­omy does not pro­duce suf­fi­cient sur­plus-value, Kenya’s first con­sti­tu­tional prob­lem is that the govern­ment fails to col­lect suf­fi­cient do­mes­tic taxes to pro­duce pub­lic goods. That is why in 2014, Pres­i­dent Uhuru Keny­atta’s Ju­bilee ad­min­is­tra­tion was forced to is­sue IOUS to raise Sh250 bil­lion from for­eign mar­kets. Euro­pean gov­ern­ments, com­pa­nies and fi­nan­cial in­sti­tu­tions bought our Eu­robonds on the Ir­ish Stock Ex­change. Kenya is in­debted to re­pay with in­ter­est. That loan is ear­marked for cap­i­tal projects like “geo­ther­mal plants, ex­panded air­ports, or a rail­way be­tween Nairobi and the port city of Mom­basa.”

Re­source con­straints

Yet, Septem­ber 2014 trans­fer re­ceipts sug­gest that US$999 mil­lion (Sh100 bil­lion) of th­ese pro­ceeds were si­phoned from one Kenya govern­ment sov­er­eign bond ac­count, at JP Mor­gan Chase in New York, to an­other at the Fed­eral Re­serve Bank of New York. It is no co­in­ci­dence that with 2017 elec­tions loom­ing, Ju­bilee’s in­cum­bent politi­cians en­gage in a cul­ture of con­spic­u­ous con­sump­tion, con­tribut­ing mil­lions of shillings at weekly “haram­bees.” Yet sec­tion 55(2) of the Anti-cor­rup­tion and Eco­nomic Crimes Act (2003) creates “the pre­sump­tion of cor­rupt con­duct.” This was held by the Court of Ap­peal in the 2015 “Ethics and Anti-cor­rup­tion Com­mis­sion v Stan­ley Mombo Amuti,” case. Judges Martha Koome, Han­nah Ok­wengu and Fes­tus Azan­galala as­serted that the Kenyan Con­sti­tu­tion “makes pro­vi­sions for na­tional val­ues and prin­ci­ples of good gov­er­nance that in­cludes in­tegrity, trans­parency and ac­count­abil­ity.” It is on th­ese grounds that Op­po­si­tion leader Raila Odinga, re­cently de­cried plun­der of pub­lic money for pri­vate pur­poses.

Ju­di­cial in­de­pen­dence is cru­cial for do­mes­tic com­merce. How­ever, wide­spread lack of lit­er­acy and nu­mer­acy skills by do­mes­tic bor­row­ers pro­motes in­for­mal dis­pute res­o­lu­tion tech­niques, rather than Western ad­ver­sar­ial lit­i­ga­tion mod­els. Fur­ther­more, for en­trepreneurs to over­come re­source-con­straints, i.e. to raise cap­i­tal, so­phis­ti­cated judges are re­quired to bal­ance be­tween strik­ing down de­fec­tive, mar­ket-dis­tort­ing, gov­ern­men­tal com­mand de­ci­sions, while si­mul­ta­ne­ously pre­vent­ing en­croach­ment upon hu­man rights by preda­tory ad­min­is­tra­tors.

At one ex­treme, un­reg­u­lated fi­nan­cial mar­kets fa­cil­i­tate fleec­ing of “wananchi.” At the other ex­treme, Par­lia­ment con­trols key sub-sec­tor prices, like petrol. Pre­vail­ing eco­nomic aus­ter­ity ex­plains Sirisia MP John Waluke’s re­cent re­vival of the “Donde Bill”, which seeks a ceil­ing on com­mer­cial in­ter­est rates to out­law usury. Such pro­tec­tion­ist mea­sures re­flect the dif­fi­culty of un­so­phis­ti­cated ad­min­is­tra­tors in de­vel­op­ing coun­tries to re­spect equal rights, as it de­mands ap­pli­ca­tion of com­plex dis­cre­tionary stan­dards, which in­creases the cost of gov­er­nance. Whether lib­er­al­ism or pro­tec­tion­ism, the ab­sence of in­de­pen­dently au­dited over­sight ac­counts ne­ces­si­tates con­cep­tu­al­is­ing a nor­ma­tive frame­work to es­ti­mate the mal­func­tion­ing of checks and bal­ances in the new con­sti­tu­tional dis­pen­sa­tion. Are in­ces­sant calls for con­sti­tu­tional ref­er­enda jus­ti­fied? Which spe­cific amend­ment is prefer­able to es­tab­lish ef­fec­tive con­trols on govern­ment bor­row­ing, spend­ing and abuse of power?

Se­cond-best re­forms

Econ­o­mists Richard Lipsey and Kelvin Lan­caster dis­cov­ered the gen­eral the­o­rem of the se­cond-best in 1956. It means that a con­sti­tu­tion may be de­fec­tive in mul­ti­ple di­men­sions. It may not only con­tain de­fec­tive rules, but also be presided over by un­so­phis­ti­cated rulers. In such com­pound­edly bad con­sti­tu­tions, they cau­tion that some­times a change in its crude rules, while re­tain­ing un­so­phis­ti­cated ad­min­is­tra­tors, or vice versa, can make mat­ters worse. Rather, the cur­rent sit­u­a­tion may some­times rep­re­sent the se­cond-best sit­u­a­tion. Ideally, a change in both bad rules as well as poor lead­er­ship pro­duces firstbest over­all so­cial wel­fare. This sec­ondbest the­ory can au­dit the per­for­mance of Ju­bilee’s con­sti­tu­tional im­ple­men­ta­tion.

Bad con­sti­tu­tion­al­ism be­gan with colo­nial Kenya’s “in­di­rect rule” model. Feu­dal­ism de­nied Africans any right of ap­peal to the Supreme Court to chal­lenge crude rules. Im­pe­ri­al­ist dis­crim­i­na­tory due process re­sulted in an un­even play­ing-field. Fa­cil­i­tated by hand-picked home guards, the per­cep­tion that so­cio-eco­nomic in­equal­i­ties were un­mer­ited pre­cip­i­tated the Mau Mau re­bel­lion. African na­tion­al­ists re­jected bla­tant race-based ex­clu­sion. Dur­ing the tur­bu­lent 1950’s, con­sti­tu­tional in­sta­bil­ity re­duced late Bri­tish colo­nial­ism’s short-term eco­nomic ef­fi­ciency and de­creased so­cial wel­fare. Sim­i­larly, in the post-cold War era, our au­thor­i­tar­ian Kanu-state ig­nored eth­nic cleans­ing thus ef­fec­tively con­tin­u­ing “di­vide and rule.”

Not­with­stand­ing de-racial­i­sa­tion through in­de­pen­dence, or even the muchawaited “se­cond lib­er­a­tion,” the re­pres­sive, sec­tional Kenyan state con­tin­ues to serve elites and ex­ploit labour. Lamentably, low civic education per­mits re­liance by politi­cians on eth­nic affin­ity for un­wit­ting sup­port from ex­cluded classes. Both “uhuru” prom­ises of land and free­dom

“It is not pos­si­ble for coun­ties to al­le­vi­ate poverty, pro­mote de­vel­op­ment or re­spect hu­man rights at the grass­roots, with­out first in­creas­ing de­volved fund­ing and in­volv­ing them in se­cu­rity func­tions. With­out ‘en­ti­tle­ments’, no mar­ket’s in­vis­i­ble hand can pro­tect the marginalised from “eco­nomic ban­ditry”

were aban­doned un­cer­e­mo­ni­ously. Re­cent Rome Statute pro­vi­sions out­law man­i­fest crim­i­nal­ity of mass hu­man rights vi­o­la­tions. Nowa­days, cir­cum­stan­tial crimes of klep­toc­racy aid and abet crimes against democ­racy. Two points are ir­re­sistible. That ab­sence of eco­nomic in­vest­ment makes “rule of law” hard, and vice versa.

Sys­temic cor­rup­tion

It fol­lows that Kenya’s se­cond con­sti­tu­tional prob­lem is the Ju­bilee govern­ment’s delin­quent political will to es­tab­lish cred­i­ble over­sight mech­a­nisms or nur­ture me­dia free­doms. Con­sider De­cem­ber 2015 leg­is­la­tion con­fer­ring Pres­i­dent Keny­atta not only new pow­ers to em­ploy and dis­miss the Au­di­tor-gen­eral’s staff as well as the Po­lice In­spec­tor-gen­eral (and deputies), but even to ap­point both the Chief Jus­tice and Deputy from three nom­i­nees. In­cum­bents, as well as op­po­si­tion lead­ers suc­cumbed to pop­u­lar eth­nic pres­sure to com­pro­mise com­pet­i­tive pol­i­tics and sti­fle mar­kets pre­scribed un­der lib­eral ethics. Out­go­ing Chief Jus­tice Dr Willy Mu­tunga SC ac­cuses “eco­nomic ban­dits” of state cap­ture where “weak state struc­tures in African coun­tries cre­ate space for crim­i­nal net­works to op­er­ate, es­pe­cially when th­ese groups op­er­ate along eth­nic loy­al­ties.”

The Law So­ci­ety of Kenya, among other civil so­ci­ety ac­tivists, is su­ing the un­con­sti­tu­tion­al­ity of in­creas­ing ex­ec­u­tive un­ac­count­abil­ity. The 2005 Blair Com­mis­sion Re­port con­firms that “Africa’s his­tory over the past fifty years has been blighted by two ar­eas of weak­ness. Th­ese have been ca­pac­ity – the abil­ity to de­sign and de­liver new poli­cies; and ac­count­abil­ity – how well the state an­swers its peo­ple.” Issa Shivji in­ter­prets th­ese as mean­ing that Africans are “blighted” by lack of the abil­ity to think and by cor­rup­tion, re­spec­tively. Yet a third con­sti­tu­tional prob­lem be­dev­ils Kenyan so­ci­ety, namely hu­man rights vi­o­la­tions. Matthew Stephen­son ex­trap­o­lates this ra­tio­nale for stalled ju­di­cial sec­tor re­forms, which ex­plains the in­er­tia af­flict­ing wider le­gal and con­sti­tu­tional im­ple­men­ta­tion.

Al­though most sub­stan­tive rules un­der the cur­rent con­sti­tu­tion gen­er­ally por­tray de­volved govern­ment, the pro­ce­dural rules for ac­cess­ing the courts to pe­ti­tion a pres­i­dent-elect, re­main flawed. Cord wishes both to in­crease the political will to de­volve funds as well as im­prove the IEBC’S and Supreme Court’s re­spec­tive im­par­tial­ity. Ju­bilee in­clines to­wards re­vers­ing de­vo­lu­tion gains and re­cen­tral­is­ing ex­ec­u­tive power. Al­though Kenyans de­serve bet­ter con­di­tions than we re­ceive from the eth­nic dem­a­gogues we choose, im­pos­ing ei­ther un­elected rep­re­sen­ta­tives or for­eign poli­cies is an un­demo­cratic op­tion. Un­less or­di­nary cit­i­zens per­ceive the ben­e­fits, cher­ish the val­ues and ap­pre­ci­ate re­spon­si­bil­i­ties of liv­ing un­der a lib­eral demo­cratic con­sti­tu­tion, we are un­likely to ded­i­cate suf­fi­cient re­sources to protest against eco­nomic sab­o­tage, political fraud and mis­rule. Cur­rent pres­sure for the “rule of law” pro­ject, ex­erted by in­ter­nal ac­tivists, lever­ages on the In­ter­na­tional Crim­i­nal Court cases.

Okoa Kenya or Pun­guza Mzigo?

By a Novem­ber 9, 2015 Con­sti­tu­tional Bill, Cord’s Okoa Kenya Move­ment iden­ti­fied 42 clauses crav­ing na­tional ref­er­en­dum amend­ments. Kisumu Sen­a­tor Anyang’ Ny­ong’o high­lights first, that the Con­sti­tu­tion’s “Land and En­vi­ron­ment” chap­ter ig­nores county govern­ment mat­ters. Se­cond, that “the con­sti­tu­tion only guar­an­tees coun­ties not less than 15 per cent of the na­tional bud­get.” Third, “Where our peo­ple live in the coun­ties, se­cu­rity per­son­nel op­er­ate as if they are an alien force di­vorced from county gov­ern­ments.” It pre­scribes that: “This mis­chief will fi­nally be cured when the amend­ment es­tab­lishes a County Se­cu­rity Ad­vi­sory Coun­cil.” Fourth, that par­lia­men­tary political par­ties de­mand pro rata strength in the In­de­pen­dent Elec­toral and Bound­aries Com­mis­sion. Fifth, that pro­ce­dural tech­ni­cal­i­ties im­pede ac­cess to Supreme Court elec­toral reme­dies. It pro­poses en­larg­ing time­lines for lodg­ing pres­i­den­tial elec­tion pe­ti­tions to 21, up from 7, days, and post­pon­ing judg­ments un­til 60, in­stead of 21, days. The first three sub­stan­tive pro­pos­als seek struc­tural re­design for wealth re­dis­tri­bu­tion. The last two pro­ce­dural pro­pos­als mod­ify the elec­torate’s means of hold­ing lead­ers ac­count­able. Al­to­gether, Okoa

“Peo­ple lack ef­fec­tive rights if such rights are promised in law but de­nied in prac­tice”

Kenya as­sumes that ben­e­fits of de­volved govern­ment – whether re­gional equal­i­sa­tion or re­duc­ing hu­man rights vi­o­la­tions, can only ac­crue if re­formists – rather than con­ser­va­tives – steer con­sti­tu­tional im­ple­men­ta­tion.

Charles Ny­achae’s Com­mis­sion for the Im­ple­men­ta­tion of the Con­sti­tu­tion’s 260-page De­cem­ber 2015 Re­port made dis­tinctly dif­fer­ent pro­pos­als. He said “there should be a max­i­mum of 225 MPS in Par­lia­ment down from the cur­rent 345.” CIC “also want the num­ber of wards re­duced by half, from 1,450 to 750. The team has also pro­posed that the sec­tion for nom­i­nated MPS be deleted to do away with nom­i­nated MPS.” Th­ese rep­re­sen­ta­tional re­duc­tions omi­nously re­sem­ble Ju­bilee’s Gatundu South leg­is­la­tor Moses Kuria’s “Pun­guza Mzigo” scheme. On Novem­ber24, that rul­ing party mav­er­ick an­nounced a “ref­er­en­dum to re­duce the num­ber of MPS and MCAS and scrap sen­a­tor and woman rep­re­sen­ta­tive posts. He said the num­ber of coun­ties should be re­duced from 47 to 16 and MPS to 200.” Both lat­ter al­ter­na­tives, to their credit, would sig­nif­i­cantly re­duce Kenya’s wage bill. To their dis­grace how­ever, the Ju­bilee govern­ment may si­mul­ta­ne­ously scut­tle wider de­volved rep­re­sen­ta­tion of the peo­ple.

Crit­i­cis­ing se­cond lib­er­a­tion piece­meal strate­gies, Kenya’s then At­tor­ney Gen­eral Amos Wako claimed, “it is the NGOS’ ap­proach to le­gal and ju­di­cial re­form that is char­ac­terised by nar­row fo­cus on spe­cific, self­ish man­dates.” In “Le­gal Re­form, Global Knowl­edge, and Civil So­ci­ety: The Kenyan Ex­pe­ri­ence,” 2001, he com­mended the Kanu govern­ment for faith­fully dis­charg­ing its broad “duty to see the over­all pic­ture and mak­ing de­ci­sions in the in­ter­ests of so­ci­ety as a whole.” Se­nior Coun­sel Wako, now Cord’s Bu­sia Sen­a­tor and even vice-chair­man of the In­ter­na­tional Law Com­mis­sion, ar­gued that: “Some NGOS were formed pri­mar­ily as a source of wealth for its of­fi­cials or mem­bers and only sec­on­dar­ily to es­pouse cer­tain ideals. They of­ten lack trans­parency and ac­count­abil­ity, and pur­su­ing one track – as nearly all non­govern­men­tal or­gan­i­sa­tions do – can be detri­men­tal to other equally im­por­tant tracks. Gov­ern­ments and in­ter­gov­ern­men­tal or­gan­i­sa­tions have a duty to see the over­all pic­ture and make de­ci­sions in the in­ter­ests of so­ci­ety.” Im­pro­vis­ing “se­cond-best” the­o­rem rea­son­ing, Wako con­demns NGOS, rather than the govern­ment, as de­sir­ing in­cre­men­tal­ism in their search for le­gal and ju­di­cial re­form, since “they lack re­sources and gen­uine com­mit­ment to the ideals and noble ob­jec­tives they es­pouse, as well as grass-roots sup­port.”

Creep­ing in­cre­men­tal­ism

A the­atri­cal tragedy en­sued. First, in its land­mark 2004 “Njoya case,” the con­sti­tu­tional court tor­pe­doed the NGO’S il­le­git­i­mate Bo­mas Draft Con­sti­tu­tion. Se­cond, the Novem­ber 2005 na­tional ref­er­en­dum re­sound­ingly re­jected Wako’s Draft Con­sti­tu­tion. Both doc­u­ments had ex­tra­ne­ous ori­gins. How­ever, Wako’s was Ex­ec­u­tive­ori­ented, re­pro­duc­ing the cen­tralised “sta­tus quo ante.”

Third, post­elec­tion vi­o­lence erupted. Con­versely, last July, vis­it­ing US Pres­i­dent Barack Obama recog­nised that “mil­lions voted for the new con­sti­tu­tion.” That har­monised ver­sion won his praise as “one of the most pro­gres­sive in Africa.” Its re­formist pro­gen­i­tors, earned re­buke. Obama crit­i­cised Cord lead­ers’ de­mands for his in­ter­ven­tion, since when “they are in power, they wanted the United States to mind their own busi­ness.”

CJ Mu­tunga voiced a lib­eral dis­sent in the Supreme Court’s “Ad­vi­sory Opin­ion No. 2 of 2012.” Con­versely, the con­ser­va­tive ma­jor­ity Tunoi, Ojwang, Wan­jala and Ndung’u, SCJJ held that gen­der par­ity in pub­lic elec­tive bod­ies can­not be at­tained im­me­di­ately. Con­sti­tu­tional equal­ity can only be fully re­alised over a stag­gered pe­riod of time. Re­count­ing his­tory, suc­ces­sive post-in­de­pen­dence amend­ments sub­sti­tuted colo­nial op­pres­sors, but re­tained un­demo­cratic laws, re­sult­ing in a thirdbest out­come. Sim­i­larly, in­com­plete im­ple­men­ta­tion, since 2010, has post­poned the first-best goal of re­form­ing both the dys­func­tional con­sti­tu­tional de­sign as well as re­plac­ing au­thor­i­tar­ian in­cum­bent of­fi­cials. If eco­nomic de­vel­op­ment and hu­man rights un­der Kenya’s pre­vi­ous con­sti­tu­tion were un­sus­tain­able, shall the se­cond lib­er­a­tion re­alise the “uhuru” prom­ise of land and free­dom?

Last Au­gust, speak­ing at the coastal ar­eas af­fected by un­reg­is­tered land with a high num­ber of squat­ters, Pres­i­dent Keny­atta re­minded us that “the land ques­tion in Kenya is an is­sue that has lasted for over 50 years and we pledged that if we won the elec­tions, we would end the land ques­tion and bring the land an­swer.” He said the 60,000 ti­tle deeds to be is­sued in the re­gion are worth Sh20 bil­lion and should be used to un­lock the wealth of the area and change liveli­hoods of res­i­dents.” With a heavy hand, in Jan­uary 2016, his govern­ment can­celled “ti­tle deeds for land to­talling 353,770 acres. He said the Govern­ment’s move to re­voke ti­tle deeds for the ir­reg­u­larly ac­quired land which was handed over to Lamu County govern­ment was aimed at en­sur­ing the lo­cals get enough land for de­vel­op­ment.”

Cu­ri­ously, that land pro­tec­tion­ism main­tains that: “The County Govern­ment should plan well on how to utilise the land. There is need to set aside land for live­stock keep­ing, farm­ing and in­dus­trial de­vel­op­ment.” How­ever, it is not pos­si­ble for coun­ties to al­le­vi­ate poverty, pro­mote de­vel­op­ment or re­spect hu­man rights at the grass­roots, with­out first in­creas­ing de­volved fund­ing and in­volv­ing them in se­cu­rity func­tions.

With­out “en­ti­tle­ments,” no mar­ket’s in­vis­i­ble hand can pro­tect the marginalised from “eco­nomic ban­ditry.” Lund con­cedes that al­though cus­tom­ary rights have his­tor­i­cally con­ferred “in­ef­fec­tive own­er­ship’ or prop­erty rights” (such as women’s cus­tom­ary rights to a field of their own) ti­tle deeds for squat­ters are “dis­tinct from no rights at all, even if those pa­per-only rights do not trans­late into the abil­ity to ben­e­fit here and now.”^

Pres­i­dent Uhuru Keny­atta at the Coast, where the land prob­lem runs deep.

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