Guest Post: Balancing between freedom and security; the dilemma Kenya faces

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By Dr. Washington MacOdingo

This post originally appeared on the Standard Newspaper on May 25, 2015 and the consent of the author has been granted to republish it on this platform.

There can never be freedom without security, and there can never be security without freedom. The tricky part for any government is striking a balance between the two for the enjoyment of both. President Uhuru Kenyatta is famed for uttering the words, “Security Begins With You”. At the time, many people (myself included) frowned at the idea of the State throwing back its core responsibility to We, the People. How could the President ask us to be responsible for our own security yet we pay taxes so that the State can protect us? Kenyans on social media went wild with rage. The President had lost it, we said. Then the attacks on Garissa University College happened. From reports, these were well-calculated attacks. The terrorists clearly understood their target. They knew there would be prayers at 5.30am. They knew where the bulk of the students were.

They knew where the vantage points were for cover. They had probably been to this compound. It is even likely that some students had noticed strangers, but dismissed it as normal. A similar situation probably happened at Westgate Mall. They could have rented a stall in the mall for months. There were probably local security guards that had befriended them as they studied the mall and stockpiled weapons. It is feasible that had wananchi in these instances been just a little bit more vigilant, the attacks would have been thwarted. None of this happened. As a result, more than 200 people lost their lives in these incidents. Just recently, a bandit attack in Turkana left over 60 people dead. Without knowing the specifics, it is clear that such an attack could not have been planned and executed unnoticed. Someone knew it would happen and kept quiet. When you walk on Tom Mboya Street, you are not going to spend the entire time talking on your iPhone 6 oblivious of your environment. If you did that, you would not have possession of that phone by the time you reach half the distance. Your arm would probably have suffered a fracture in the process. In the same vein, it would be pretty stupid to park your car unattended in Grogan overnight and then wake up to blame the Government when you find the chassis suspended on stones. My point is, we must play our part in the war against insecurity. We must be suspicious of strange people around us. And if one of the terrorists in Garissa (a learned lawyer with a promising future) is anything to go by, the next terrorist maybe that guy or lady you hang out or strike a deal with.

Of course, the State must also take its responsibility to protect Kenyans seriously. It must gather proper intelligence and act on them promptly. It must investigate all reports from wananchi and take prompt action where the reports turn out to be credible. But to do this, the State needs certain tools; and wananchi need to talk to security officers and provide information. This is why the Security Laws (Amendment) Bill, 2014 (now Act) was introduced. Among other things, it provided for the National Intelligence Service officers to be given powers to arrest and detain suspected terrorists. It also proposed to allow the National Security Organs to intercept communication for the purposes of detecting, deterring and disrupting terrorism. It provided for the limitation of information the media can release on ongoing investigations so as not to jeopardise the outcome. It provided for stiff penalties to public officers facilitating the entry of criminals into the country. It provided for the admission of digital evidence, mostly to ensure that surveillance material can be used in trial. It also created an offence for possession of weapons for terrorist purposes, possession of weapons in places of worship or public places, possession of weapons by an institution or place of worship and radicalisation. Unfortunately, some of these provisions were struck down by the High Court. The Bill (now Act) sought to give national security organs the tools to detect, deter and prevent terrorist activities against the People of Kenya. In doing so, it may mean that once in a while the privacy of your conversation may be infringed if you are having a phone call with a suspected terrorist or terrorist financier. It may mean that the next time you are entering a public place, your right to privacy may be infringed by having a search done on your person. It may mean that the security organs, on reasonable grounds, may stop and search your car in traffic if there are credible reports that an attack could occur in heavy traffic. But the inconvenience of a disconnected call, or a few minutes of search, or the occasional traffic stop is nothing compared to the realistic possibility of being blown into pieces by a terrorist. The Constitution may guarantee these rights, but these rights are only enjoyed by those who are alive to read them.

We are at war – and it is not a conventional war. We have an enemy we don’t know by name. We don’t even know what this enemy looks like. We cannot even begin to pretend that we know where the next attack is likely to be in or come from. It is precisely for this reason that we must all give just a little bit of our freedoms so that the national security agencies may have the necessary tools to protect all of us from those amongst us who intend to do us harm. The President is right – absolute freedom means nothing to dead people. And as he has said before, “Usalama unaanza na Wewe”.

The author of this piece, Dr. Washington MacOdingo is consultant based in Nairobi. He has worked for the government, the private sector, NGO’s and CSO’s. He is also a FES alumni – Political Leadership Development Program (Intake II, Class of 2005/6).

The views expressed here do not necessarily represent the views of FES

Fighting Graft in Kenya: The President’s War on Graft, Stepping Aside and Other Short Stories

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Corruption is one of the vice’s that has been affecting the Kenyan Economy. If you ask me, I would say the rains started beating us after the implementation of the Ndegwa Commission. This commission was tasked to investigate whether public servants ought to be allowed to engage in business while still public officers. The commission found it worthwhile to recommend that civil servants should be free to engage in business activities provided they did that during their free time. It is from this point that I can authoritatively say that corruption in the public service raised its ugly head and there has been no turning back henceforth.

Although during the Kibaki administration, there was the initiative which was assented in to law where Civil Servants are required to declare their wealth. In doing so, it was thought that officials can easily compare the declared income and sources of income – if the wealth of a public official does not correlate with the sources of income then chances would be that the said official is dealing with some underhand dealings. Also, the crafters of this legislation thought that such legislation would prevent public officials from engaging in underhand dealings.
However, the main shortcoming of this legislation is that the wealth declarations have not been made public and as such public scrutiny does not exist. This renders the whole exercise useless.

2015: The Year of Fighting Corruption?
At beginning of this year, the President in his New Year’s speech addressed the issue of corruption and his administrations resolve to fight this vice. In this speech the president said;

Corruption destroys public trust, undermines democracy and the rule of law, and creates space for organised crime and other threats to security. Tackling corruption will see private sector grow, attract investment, and ensure benefits of growth shared by all Kenyan citizens.

Corruption remains a major obstacle to our national development agenda. Government processes will become more transparent.
In addition to the menu of policy and institutional frameworks, my Government will digitise public service transactions to make them more transparent and thereby eradicate the opportunity for corruption.

The New Year’s address to the nation typically lists the agenda of the president. It was worthwhile to hear the president speaking out loud against corruption and making this one of his agenda’s for 2015.

Fast forward to March this year, in his State of the Nation Address, corruption was one of the Presidents talking points. On this occasion the president stated;

When I spoke to the Nation on the eve of the New Year, I assured Kenyans that in 2015, my administration will deal firmly with corruption.
I have continuously engaged with all institutions charged with the responsibility to deal with corruption, and firmly expressed my expectations, and the people’s desire, that their respective mandates are executed robustly, urgently and without fear or favour.

I pledged my administration’s full support, as well as my own personal support, to any actions that will reverse the course of this cancer eating at the soul of our motherland. Rather than unite against this common enemy of our people, these institutions have elected to be mired in personal and institutional conflicts that have chipped away at their legitimacy and brought disrepute to the State.

From the commission charged with the responsibility in the fight against corruption, Parliament’s premier oversight committee, the corridors of justice, and the security organs charged with the safety of this nation, Kenyans are witness to the betrayal of their trust.

When our Treasury was processing our first sovereign bond, this country was forced to settle a foreign court judgement to pay shadowy entities 1.4 billion Kenya shillings. When I addressed the nation on this matter, I pledged that my government would do everything in its power to ensure that we recover all that was due to the Republic. From that moment, I took a personal interest and asked to be briefed on a regular basis of the progress on Anglo Leasing related investigations. My administration also supported the investigating authorities in obtaining support from a number of friendly foreign governments.

These investigations bore fruit. However, obstacles have appeared threatening the prosecution of the perpetrators. The Ethics and Anti Corruption Commission is now embroiled in infighting and finger-pointing, a state of affairs likely to cripple the investigative capacity of the institution with the likely outcome of subverting the course of justice. From reports I have received, I strongly believe that this is a further attempt to subvert the successful prosecution of the Anglo Leasing cases.
As I have indicated, constitutional officer holders, State Officers and every public servant, are bound by the values enshrined in our Constitution. They are required to uphold the highest standards of personal integrity in the discharge of their official functions.

In view of the oath of office that I took as the President of this republic, let it be known that today I draw the line. No one will stand between Kenyans and what is right in the fight against corruption and other monstrous economic crimes.
I have asked the Attorney General to liaise with the Council on Administration of Justice to focus on coordination within the Justice, Law and Order sector. The Council must ensure the efficient and speedy processing of corruption-related cases, including hearing such cases on a daily basis.

I direct the Attorney General to review the legislative and policy framework to ensure the effective discharge of Constitutional imperatives related to integrity.

The highlight on this occasion was the below directive to EACC;

Three weeks ago, I issued Executive Order Number Six (6) on Ethics and Integrity in the Public Service. In it, I directed any civil servants to get in touch with my Office should they receive any pressure to engage in unethical or illegal conduct regardless of the status of person pressuring them to do so. I want to reiterate this personal commitment, which is also provided for in the Constitution.

The latest report I have received from the Ethics and Anti Corruption Commission contains a catalogue of allegations of high-level corruption touching on all arms and levels of Government. It is the view of the CEO of the Ethics and Anti Corruption Commission that the institution and especially its Secretariat are under siege because of the nature of the cases they are currently investigating. I know that Parliament is seized of this matter and urge them to deal with it expeditiously.

(a) Today, I take the extra-ordinary step of attaching the afore-mentioned confidential report from the CEO of the Ethics and Anti Corruption Commission as an annex to my annual report on Values to Parliament.

(b) Consequently, I hereby direct that all Officials of the National and County governments that are adversely mentioned in this report, whether you are a Cabinet Secretary, Principal Secretary, or Chief Executive of a state institution, to immediately step aside pending conclusion of the investigations of the allegations against them. I expect the other arms of Government, namely the Legislature and the Judiciary, to do the same.

(c) The investigating authority must ensure that the Director of Public Prosecutions has received the subject files without delay.

(d) I also want to caution that this should not be an open-ended process, justice must be expeditious, as justice delayed is justice denied. Therefore, this exercise should be concluded within the next 60 days.

(e) Let me reiterate that it is not my place to determine the guilt or otherwise of any of the people mentioned in the said report or any other. However, the time has come to send a strong signal to the country that my administration will accept nothing less than the highest standard of integrity from those that hold high office.

After this speech the talk of town was to know the contents of the list of shame as it was referred thereafter. This list was made public shortly after when it was tabled in parliament. The names in this list included Cabinet Secretaries, Governors, Public Secretaries and even Ambassadors. The President gave a directive that those featured in this list ought to step aside to give way for investigations by the Ethics and Anti-Corruption Commission.

This was a big one by any standards and I could compare this to the corruption purge in the Judiciary undertaken in the first years of President Mwai Kibaki administration. This was led by Justice Aaron Ringera and mainly focused on removing the Moi era judges who were corrupt by all circumstances, since that was the entrenched culture by then. However, this purge had a political dimension as well, which were also getting rid of judges who were anti-NARC (then the ruling coalition).
Stepping Aside and Intrigues at the EACC.

As directed most of the high ranking government personalities featuring in the list of shame stepped aside following the President’s directive. However, most analysts felt that the said stepping aside was not enough – the listed individuals needed to resign. However, not in Kenya!

The other interesting phenomenon was the intrigues at the body responsible with investigating the corruption allegations and forwarding them to the Director of Public Prosecutions (DPP). The CEO and his deputy engaged in a public spat which was widely reported in the dailies. This was the public face of the body leading the war on corruption. There were feuds reported as well inside the commission. These fights took an ugly turn when parliament recommended to the president the investigations of the CEO and his Deputy. A tribunal was thereafter appointed by the President as enshrined in the constitution however the CEO and Deputy resigned and never faced the tribunal.

The 60 days given to the EACC lapsed May 24, 2015 and the EACC has forwarded some files to the DPP for his considerations as to whether to pursue charges against the said high ranking individuals.

So far no one has been arraigned in court yet but names of those to be arraigned in court are in public domain.

My Reading of this Whole Exercise – Fighting Corruption
The President seems to be genuinely interested in fighting graft. This is further emphasized by the joint communique issued by the President, British High Commission and Embassy of Switzerland. This communique was issued after the envoys of Britain and Switzerland visited the President at State House to show their support to the war on graft.

However there seems to be some complications even at the presidency level. The Deputy President’s name has been floated in a number of corruption allegations. Unlike the President, the DP has a history which traces back from his days as a youth winger in KANU during the Youth for KANU (Y2K) days. The President on the other hand is what you would call a Prince (being the son of the founding father). The two were joined in the hip by the ICC cases something that is no more for the president whose case was terminated for lack of evidence (in what CSO would consider hazy circumstances). The DP’s case is still ongoing.

An interesting distinction was in the way the Presidency acted once the list was made public. This list contained name of a PS based in the office of the Presidency based at State House and an aide to the DP. The President relieved the PS based at State House his duties while the aide to the DP stepped aside and has not been fired as of today. This speaks volumes that inside the administration there might be differences of opinion on how to fight graft. However, the President has stood by his DP on claims of corruption leveled against him. This would possibly long game on his part – most of the Kenyan’s believe that DP’s case at the Hague might result into a conviction which would relieve the President of his alliance but at the same time allow him to keep the empire both of them built.

In the coming weeks we can expect either a reshuffle of the cabinet or a filling in of the positions left by Cabinet Secretaries that are formally charged in court. The Public Service Commission on the other hand has been conducting interviews for possible replacements in PS’s dockets.

As to whether corruption will be brought to a grinding halt especially on the senior most levels, as far as I am concerned the jury is not yet out on this matter. But it will be interesting to see how this purge on corruption will end. Given the fact that the country is pursuing a number of big projects most of the replacements to these high offices will in a matter of fact be taking poisoned chalices.

The author of this piece is a blogger and a cultural practitioner in Nairobi. The views expressed here do not necessarily represent the views of FES