The Love Blunder of the Supreme Court

Marriage, in my view, is one of those traditions that can best be described as a truly awful charade based on skewed horse-trading. Don’t get me wrong, I have a deep respect for married couples and their union; one that is borne out of real fear for their mental health, yes, but a respect nonetheless.  I even find the commercial wedding shows on television mildly entertaining, even if it’s from a sadistic view point. But really, the bottom line is that marriages is one of those decisions people make, and then later find justification for it.

What could possibly be wrong with such a formula you ask? Well it’s simple.  A rational, logical and sensible decision is part of a THINKING process; one that involves weighing and discarding the merits and demerits of the situation presented, comparing all possible outcomes and naturally discarding fallacious reasoning. A rational decision is based on factual evidence, and precedents that are applicable. A rational decision applies logical and established processes to come to a final conclusion. 

A decision to get married is rarely based on logic. In fact, if people were rational about marriage, no one would get married. When people decide to get married they make an emotional decision first, stick to their decision, and then later find justification for their emotional decisions. Even years later, when the emotions have run dry or changed, the justification is the sole comforting factor that married couples can always lean on.

Making a decision, an unanimous one, and then seeking justification for it, is an indication that a lack of rationale was behind that decision making.  When the Supreme Court came back with a 6-0 bench decision on the presidential petition filed by Raila Odinga in late March, and with no further statement on how they came to such a ruling, it was a chilling indicator that a jurical rationale may actually be missing from their ruling.

So when their ruling was released to the public this week, filled with logical fallacies I was not really surprised. After all, what happened in late March was an announcement of an engagement – you ever see a couple together and think what does HE see in HER? Or vice versa?  The announcement in March had that same dumbfounding effect on all of us.

I personally was stunned. Well, not so much stunned as shocked at the unanimity of the decision. Of course I could see the early trend and tendency in the Chief Justice to be a judicial toddler unaware of his responsibilities to the nation and incapable of comprehending the law remotely well enough to even be considered a jurist. That has always been the case since Dr. Willy Mutunga announced cheerily that his earring helps him communicate with his gods during the vetting by the CIOC.

What shocked me is that somehow, we actually appointed 5 other judges with the same infantile approach to judicial matters!

This explains the blank stares and absent smiles on their faces during the hearing of the petitions. I thought they were as bored as I was listening to the redundant overtures of false humility rent by Kethi Kilonzo; “My lords, I humbly this, I humbly that.”

But no, it was not sweet Kethi’s court room mannerisms that were getting to the bench. They had blank stares on their faces because there is a blank space behind those eyes.

This click of 6 judicial tots, not a single jurist between them, went into a boardroom and made a decision to uphold the results of the election, having applied neither rationale nor legal basis and then 2 weeks later, having taken the time to dig up some storyline, present what can only be described as a “justificatory assent.” 

A legal acquaintance, Emmanuel Essaidah, put it best – “My favorite legal scholar, Ronald Dworkin, in his book, ‘Justice in Robes’ describes the problem of “justificatory assent”  as the realization that a principle we are relying on is ‘inconsistent with…some other principle that we must rely on to justify some other and larger part of the law’. You can see this particular problem loom large all over the Supreme Court judgment. The Judges claim to recognize that an election case isn’t a criminal case, yet they realize they must rely on a criminal standard of proof (proof beyond reasonable doubt) to achieve a pre-conceived result. They claim that transparency is crucial, yet they rely on the principle of discretion to afford the IEBC the right to do things behind closed doors. Go figure.”

Are you as baffled as I am at this? Where did we go wrong, pray tell, as a nation such that we can churn out such skewed minds and put them in such seats of power as the Supreme Court?

What an awful charade this Supreme Court has become, a place where justice is swept neatly under reasonably good English yet ridiculous references to totally irrelevant cases from the Nigerian Supreme Court.

I guess some 6 people are in love or something, there is no other way to explain the lack of judicial rationale in their ruling. It’s obvious that the unanimous decision in March was a pre-conceived outcome, that had little basis on the law, and then 2 weeks later the ruling is forced to express itself in the most fallacious manner, causing even the least developed legal mind to be completely irritated. 

Just like the awful marriage idea that some people get in their youth, 10 years of wedded hell and 3 children later at their anniversary, the couple smiles banally at their guests and behind those blank faces is a blank mind that repeatedly screams “I hate this person!”; we as a republic will surely find ourselves regretting, in fact deeply regretting this Supreme Court ruling for the precedent it has set.

How NOT To Govern A State

A struggling business recently underwent a strategic make over. First, the badly needed funds were pumped into the business so that structural investments were made. Then the recruitment of employees began; a head hunting exercise that saw a mass exodus into the firm. Then finally the grand launch of the new and improved business happened. Everything was going to be so good and so successful.

But the business owners made one fundamental mistake. When hiring the new employees they agreed to pay ridiculously high salaries based on yet to be created output! Needless to say, the wage bill was running in the millions, and yet none of the new employees had generated a single million. Soon it became clear: the employees were the core reason the business could not operate successfully because a handful of people were being paid the bulk of the companies dwindling resources. What should the C.E.O of that company do?

Its simple. He needs to slash their salaries and cap it firmly until the business gets back up and healthy. The CEO also needs to fire the unproductive people on his pay roll.

This is the same SIMPLE formula we need to apply to governing our country. Kenya is just like that business, failing, lagging behind, bottom feeding and barely developing as fast as Rwanda. Kenya, despite her potential has had the wrong sort of employees for too long. Whenever we go to an election we hire what we imagine to be the best representatives and leaders only for these employees to drain our resources in their salaries and allowances while they produce absolutely nothing that can help sustain their nation in terms of legislature or governing policy.

So what the president and CEO of Kenya needs to do is pass a law that dramatically slashes the salaries of these elected representatives and caps it finally in law and policy so that they can never adjust the law again to suit their own interests.

Its only because we had a lack of political will from the previous Presidency and executive arm of government that these legislators can even dream of passing new laws which will increase their salaries even BEFORE beginning their tenure! Only a thieving and robbing employee does such a thing, to reward himself before he has even begun to work, and such employees rightly should be sent packing.

I’d love to give these newly elected officials a chance. I’d love to let them show their leadership skills. But alas they have no such potential talent. It’s clear why they even ran for office, they had the intention of reaping nay RAPING our treasury.

It’s an evolution that has somehow become acceptable in Kenya. That one will run for political office in order to reward himself heftily at the expense of taxpayers. Clearly it is the only driving factor for some; there is even the suggestion that some MPs could step down for Raila Odinga and Kalonzo Musyoka in exchange for a huge sum comparable to the salaries they would have gotten for their tenure.

As lewd and as utterly hypocritical as that may be, the shocking part is how the constituents have reacted to such a proposal. They agree! Make no mistake, to sell off your elective post to ANYONE is sheer prostitution, unconstitutional and undemocratic, whether the electorate that voted you in agrees with you or not.

Surely we do indeed have the leaders that are an exact reflection of ourselves. No wonder this nation cannot grow nor move forward and no wonder our elected leaders will raid and plunder the national coffers because each one of us would do the exact same in that position.

Our Mps, Senators, Governors and County representatives are as devoid of scruples, principles or fundamental character as we are; they are as psychopathic as the person right next to you.

While it has been clear that we do indeed need more psychiatrists in this country, it would be a daunting task to try and treat over 12 million voters for whatever ails their miniscule minds. It’s far easier for the President to simply slash the salaries of these elected officials and cap it off by law such that the money hungry potential prostitutes can forever be deterred from seeking elective office because it would no longer be lucrative.

Maybe then, just maybe, we would have sifted out the myriad psychopaths and find one or two true and genuine employees of the republic and servants of the people. I can only dream of such.

The Truth About Our Ethnicity

Around 1902 or thereabouts, a colonial researcher wrote a thesis on the Ogiek people of Mount Elgon. He noted that linguistically, the Ogiek shared words with the Kalenjin people. But he was quite stumped as to where certain words came from as he could not identify them. It was only until recently when archaeologist Dr. Freda Nkirote M’mbogori took a look at the research that she observed that the unidentified words were actually Meru words.

The real meaning behind this finding is twofold. Firstly, that the Ogiek people at one point lived among the Meru people on the slopes of Mount Kenya and since then had migrated eastwards to Mount Elgon. The second crucial factor is this: that the Ogiek people most certainly acquired the words and integrated them into their language because of a consistent interaction between the Ogiek and Meru people. 

Why is this significant? The point is this. There is no single Kenyan ethnic group that can honestly call themselves a pure bloodline. Our forefathers consistently interacted and intermarried with other groups of people, they also migrated all the time such that we also cannot declare that certain parts of this country only belong to certain communities.

You know this, and so do I. It’s time to grow up. The only distinguishing factor in Kenya is our LANGUAGES. As I have demonstrated, even the languages are so intermixed that one cannot use that to segregate himself from other Kenyans.

Another interesting fact. Nearly 80% percent of the Kenyan communities circumcise as part of their cultural practices. All circumcision is inherently a Cushitic practice. That means all ethnic communities that circumcise either male or both male and females had at one point deeply interacted with Cushitic people. 

We share language, we share words, we share cultural practices and we even share societal structures. The age set system for example is shared by ethnic communities, all communities using the exact same name or variants of that name. So that is why you will find Maina among the kikuyu, and Maina among the Kalenjin and Maina among the Maasai.

There is no way to tell the difference between us. We actually have much more in common than we have differences. So when we latch onto ONE thing, just ONE simple thing called language and use that to polarize the entire country that just tells us how primitive our society has become.

100 years ago in the place now called Kenya, if you told your great, great grandfather that one day we would have peaceful elections but hatred that is this intense, he would have been amazed. Kenya is a land of bigots and ignorant racists.

The hatred that we are spewing all over the internet, all over the country in our homes, workplaces and schools is such intense poison it will surely disintegrate our social fabric. The saddest part is how we were raised to look at our fellow citizens through hateful eyes and are now raising a new generation that will hate each other even more than ever.

When a school play is banned from the nationals for alleged hate speech, and yet it passed the district and provincial levels, then the education officials behind the ban are entrenching their own bigotry and affecting our children directly. 

The ban was a throwback to the 1980s when Moi banned just about everything worth watching or reading in Kenya. We surely cannot have become such fascists overnight. If this trend keeps up even free speakers like me will soon be banned. Soon after that, free thinking will be banned and after that thinking at all will be a crime.

I keep saying there is no such word like “Tribalism” in the English language. This is politician speak for “everyone else”. What we have in Kenya is open racism and bigotry. Just like the race struggle between black and whites in the US; in Kenya our own tribal struggle is venomous and an offence to all our civil and human rights. 

We all are multi-lingual, capable of speaking our vernacular as well as the two national languages, English and Kiswahili. We have so much in common; a common ancestry, a common history and even common cultural practices and words. But that one small thing that we are using to separate us, our languages and ethnicity, which we are rather ignorant about, is the one thing that will suffer the most if we keep up this hatred.

I am saying that, if we continue separating ourselves ethnically, our own ethnicities will suffer greatly. This is because we need each other in order to survive and in order to thrive. Why did our forefathers intermarry and interact so intensively? It is because they needed to survive and to thrive. No ethnic community can grow on its own even in such “modern” times. We need each other to sustain and enhance our economy, to protect our heritage and environment and to provide for our nation. It’s very obvious, even to a child, but we teach our children to hate the butcher because he is kikuyu but to love the meat. To hate the pastoralist who is Somali but to love the meat. To eat the fish because it’s good for you but to hate the fisherman who is Luo.

We teach our children absurdities, because we choose to be absurd bigots. That is the truth about our ethnicity.

The grim reality of what we did on March 4th, 2013

They were not even sworn in before they actively attacked the salaries and remunerations board. MPigs, as they are aptly known on social media are never going to be anything but the same variety of abject, pillaging swine as their nickname implies.

It is of course very understandable that a successful political aspirant would wish to recoup his financial investment in terms of campaigning costs, it is very understandable. However, It is only in Kenya and indeed it may even be an African phenomenon that one goes into government in order to get rich. Everywhere else in the world, if one really desires to enrich oneself they go into the private sector.

Why must I be forced to equivocate this; it is just absurd for us as Kenyans to complain about how MPs are planning to attack the SRC and even invent laws in order to increase their salaries when WE voted using the exact same method of selection as in the last election!

I mean how dumb are we? How is it that we use our tribe and personal interests when voting rather than a truly democratic and inclusive national ideology and then turn around SHOCKED when the hyenas we voted for bray for higher remunerations? “Insanity is doing the same thing over and over again and expecting different results”. This is a quote ascribed to Albert Einstein.

How pervasive is our self abuse when it comes to leadership? Well. Look at our constitution. I admit that the average Kenyan may not be educated enough to comprehensively understand the law as presented in the constitution. BUT, no one has stopped you as a citizen from educating yourself on this document. So the collective LAZINESS and lack of cognitive aspiration (a level of plain stupidity)  is what encumbers us as a republic.

How serious is this situation? Well. This past week we were privileged to observe on television the submissions by petitioners and their respondents. Kenyans are so unlearned such that they cheer the lawyer for their preferred party as though it is some sort of football match. We apply no thought, no criticism and no critical thinking to what these lawyers are doing at the Supreme Court. Just like the intellectual juveniles we really are, we applaud people whose legal grasp is kindergarten level just because they consistently use redundancies like “my lord” and “your honor”. 

And then there is the panel of judges of the court. A personal friend and true astute jurist put it best:

"The problem is that many Kenyans cannot discern between "authoritative" and "authoritarian". So, when a body like the Supreme Court TRIES not to appear authoritarian like a bad overbearing primary school principal (although that style, plus a frequent application of 20 of the best, is what virtually all those monkeys masking as "senior counsels" do seriously need), they fall into the other extreme, and lose all judicial authority and direction.
If you have watched the bench, they continuously behave like a gaggle of insecure 13-years-old schoolgirls. Body language, helpless smiles, mindless giggling. And with approximately the same degree of legal knowledge." Alexander Eichener, jurist, Germany.

How deeply rooted our complex problem is then. That we, as the astute electorate are so decidedly ignorant, and yes that WAS a decision we made, such that we cannot tell when an injustice is about to be delivered.

What is indeed our collective dilemma? That fundamentally, our constitution is so weakly ascribing to justice. Take this reality into consideration. That any presidential petition at the Supreme Court is essentially NEVER going to receive even the remotest sort of judicial response it deserves. The most obvious example I can give is this: the time frame given for presidential petitions to be presented and heard. (oh! The saddest part is the indulgence in megalomania that Willy Mutunga did, as he decided arbitrarily and unconstitutionally that petitions presented to the Supreme Court regardless of the time they were presented are deemed as to have been presented on the LAST day thus happily reducing the time for deliberations; yes Sir, you may be the CZAR of Kenya but when you change the constitution as such you have COMPLETELY overstepped your mandate, SIR!) So, the time frame has been constituted as to be so short such that even comprehensive or rather wide affidavits as the CORD lawyers presented were thrown out on the basis that there is NO time to examine those affidavits. Is this justice?  Of course not!

I pity us. How much trust and hope we laid at the feet of these intellectual 13-year-olds. That even Supreme Court Justice Mohammed Ibrahim went as far as to essentially admit in an obiter dictum, that because of the time contraints imposed by the law, there is a near impossibility of any actual juridical response as regards any presidential petition.
We have no REAL jurists in this country, mostly because of a general lack of true fundamental education, but also because we do not extend ourselves as a nation and because we ever so readily accept utter mediocrity. The one (1) internationally acclaimed and widely respected constitutional jurist and scholar that Kenya has, and who offered his help, was purposely excluded by the court, and not even listened to at all: ignoring professor Yash Pal Ghai has underscored our failures.
My final words are these: that regardless of the eventual outcome of the Supreme Court decision, true justice was certainly not served here.

# Someone tell NCIC that Kenyans on Twitter (KOT) are ready to battle but not ready to kill

Dear Mzalendo Kibunjia, it’s called blowing off steam. The fact that a person can go online and just post what’s on their mind does not necessarily mean that they intend to act upon their thoughts. Of all the so called tribal and hate speech that NCIC is overly concerning themselves with online, not a single person has even been injured ever since the first Kenyan got online.

Let’s call a spade a spade. It’s just plain cowardice to go after minnows when the sharks are busy propagating and inciting folk in public and in broad daylight. Are you telling us that NCIC is oblivious to the fact that long after elections were done certain parties were intent on rabble rousing in this great country of ours? Wow. Deaf, dumb (with emphasis) and gleefully blind.

Perhaps the problem is rooted in the fact that Mzalendo Kibunjia and his team do not understand comprehensively or even superficially the legal ramifications, thresholds and parameters of hate speech. 100% of their accusations and charges are dismissed in court! While NCIC inconveniences the little people and embarrasses those they can, the real hate mongers, the real criminals’ blast propaganda and mobilize thugs so as to disrupt the fragile peace we have.

Just like the complicit Office of the Prosecutor (OTP) at the International Criminal Court usurped justice for the victims of PEV with a total lack of investigation, the NCIC usurp justice by refusing to even define what hate speech really is. NCIC refuse to even lightly caution politicians, they refuse to even politely tell them to shut up. Instead, they choose to make a mockery of constitutional rights by infringing on the freedom of expression on social media.

Yes, complicit. If there would be a wave of propaganda that leads to any single death then NCIC is guilty of that death as if they actually slashed that person with a machete. When you are in a position of influence even if not real power and you do not use that little influence to stem the tide of negativity that threatens to tear our society apart you are as guilty of every single death that occurs just as if you were a mastermind of the conflict.

Is NCIC really an outfit that was created to be a facebook prefect or monitor twitter? How ludicrous! In a 24 hour period from Thursday 21^st march to Friday 22^nd March, Kenyans on Twitter generated over 15,000 tweets in a hash tag battle with Nigerians, an international social media war that became international news because of how widespread the battle reached. So tell us, Mzalendo, does NCIC have the resources to monitor over 15,000 tweets and counter tweets covering the entire continent of Africa and reaching as far as Asia in just 24 hours? No, of course not. 

Maybe NCIC needed to find a way to justify what appears to be a social media addiction. I hear that an addiction to social media generates the same neurological responses as a cocaine addiction. Poor NCIC, they may need rehab it seems.

Let’s face the facts. There are, individuals who are very mentally ill, who post stuff online that indicate that they will eventually become violent. But to find entire communities of strangers, some of whom go by names like “Mkenyalito”, who are capable of not just talking trash about other ethnicities but to go so far as to act out their violent words is nearly impossible. Yes, some of it is indeed hate speech, but I doubt you can do anything with an anonymous profile user. It’s an effort in futility; I suppose NCIC want to justify their undeserved salaries. In my view they should actually pay Kenyans back whatever they have earned so far, with interest seeing as the sum total of their results is nil.

Freedom of expression may take an ugly turn, but it is a freedom which, on social media, cannot be curbed. You cannot stop people from expressing what’s on their mind even if you do not agree with it. It could be, that the so called “Arab spring” that was fanned by social media is what is really worrying the NCIC. They are worried, that if Kenyans keep expressing themselves online, they might, just might find that commonality, that one burden that they all share. NCIC must be petrified that Kenyans on Twitter will one day unite to fight voraciously not just the Nigerians, but the very politicians that NCIC protects by refusing to prosecute.

Oh my. What a glorious battle that will be; why I do believe that the day that unification of Kenyans occurs online, both facebook and twitter servers will be overwhelmed with the hash tag battle posts. “# someone tell Kenyan Politicians” will be the mother of all wars and I assure you that not a single one of these politicians that Mzalendo protects with his complicit silence will survive. Not a single one. That day is coming NCIC, and there is nothing you can do to stop it from happening. Nothing.