Blockchain Technology and its Role in Real Estate Transactions

Guest Writer
3 July ,2018

by Jeff Kinuthia

A blockchain is a digital database or ledger distributed across a network of computers which is protected by coding the data to prevent editing and removal, and blockchain technology is the underlying application that enables all of this. Importantly, a blockchain records and stores all the transactions that occur within the network, essentially eliminating the need for third parties to confirm the validity of the transactions.

Until recently, blockchain technology was largely utilized and associated with cryptocurrencies such as Bitcoin but more and more jurisdictions are slowly opening up to its use in different areas such as financial asset management and in land registration systems.

Which is timely because aggrieved citizens voiced their concerns with the government for years regarding the poor management of the lands registries. In 2016 the Ministry of Lands finally embarked on a digitization exercise of the 57 land registries across the country which have been keeping manual records since 1895. This exercise is ongoing and is aimed at improving the delivery of services through electronic land transactions.

While this effort must be lauded, it came at a period when the developed world appeared to be going one way and Kenya the other. However, the recent announcement by the ICT Cabinet Secretary that blockchain technology will be applied to supplement the digital database is a welcome relief that places Kenya firmly on the forefront of the blockchain revolution.

Blockchain’s advantage over traditional databases (such as the one being implemented by the Ministry) are numerous. First, under blockchain, a central database or settlement system maintained by the Land Registry for example, is replaced by multiple copies. This is great because the problem with a centralized system, especially in a country with endemic corruption, is that ill-intentioned bureaucrats often infiltrate and tamper with the system and a digital database is not be exempt from such tampering.

In a land transaction utilizing blockchain, multiple copies of a blockchain will be held by any number of interested parties such as owners, potential purchasers and agents. These copies continuously and automatically update their contents via a complex consensus mechanism that means that they are always identical. By using hashes to identify every real estate transaction (thus making it publicly available and searchable), proponents argue issues such as who is the legal owner of a property can be remedied.

Secondly, Blockchain technology also underpins ‘smart contracts’, which are programmable contracts that self-execute when certain conditions are met, and offer the possibility that transactions could complete much faster when combined with a blockchain registry.  For instance, title to the property could be transferred to the purchaser automatically on receipt of funds into the vendor’s account.  The result would also be to speed up the registration process.  With the ledger updating immediately, the registration gap would be eliminated.  This, in turn, would also lead to greater efficiencies and cost savings for land registries.

Third, nothing on the blockchain can be changed save with the consensus of the network. Any confirmed transactions on the blockchain cannot be changed.

Lastly, what happens on the blockchain stays on the blockchain. A public blockchain will act as a public ledger meaning that as long as the blockchain remains operative, the data on it will remain accessible.

Globally, other countries are already in various stages of exploring blockchain-based land registries:

  • In Brazil, the government partnered with a blockchain start up to overhaul the land registrar at two Brazilian municipalities by embedding land possession data into the bitcoin blockchain. The pilot program begun in August 2017 and is ongoing. 
  • Sweden is the country that’s furthest along in putting land registries on a blockchain. It is a country with an already well-established land registry system and believes blockchain could save the Swedish taxpayer over $100 million by speeding up transactions, reducing paperwork and minimizing fraud. 
  • Republic of Georgia has already agreed to use blockchain to validate all government related property transactions. Since its launch in February 2017, Georgia’s blockchain provider has helped implement property registration and has registered more than 100,000 documents.
  • Closer home, Rwanda recently announced that a Swiss cybersecurity company, in partnership with Microsoft, will soon offer support to the Rwandan Government in adopting blockchain technology in the country’s land registries.

Challenges facing the implementation of blockchain

Regulations have always struggled to keep up with advances in technology and blockchain is no exception. One of blockchain technology’s challenges is that it reduces oversight. There is thus a strong argument for blockchain applications to work within existing regulatory structures not outside of them, but this means that regulators in all industries should understand the technology and its impact on the businesses and consumers in their sector. New regulations will therefore need to be formulated to govern this intergration.

Second, many potential applications of blockchain, such as in land transactions, require smart transactions and contracts to be indisputably linked to known identities and thus raise important questions about privacy and the security of the data stored and accessible on the shared ledger. A key question that will always be raised is who has access to the ledger and how is access controlled?

Further, in Kenya, the current data protection laws we have in place are inadequate and we needed greater legislation with regard to accountability of persons and institutions that hold data. The relevant legislation, the Data Protection Bill (2013), has been stuck in Parliament for years now. Adequate data protection laws will therefore need to be implemented.

Finally, cost. The cost of implementing blockchain technology in a country like Kenya might prove to be a great challenge. This is firstly due to the fact that we are yet to digitize the land registry. Blockchain can only be implemented on a digital platform. The exercise, which begun in 2016 is still ongoing and there is currently no indication as to when the exercise will be completed. Once the digitization is complete, we will then need to set up the infrastructure which will involve acquiring the right software and computers with great computing and storage power.

What now?

The announcement by the ICT Cabinet Secretary on blockchain and land registries, and the setting up of a digital ledger and artificial intelligence taskforce by the ICT Ministry is an encouraging sign that the government is open and willing to adopt blockchain technology.

In the private sector, numerous startups have begun already begun implementing blockchain in their businesses. Examples include ‘ChamaPesa’, a blockchain savings application for savings groups set to officially launch in 2018. ‘Land Layby’, a real estate firm, recently announced that the firm is set to roll out an application for a blockchain-powered land registry by April 2018. The initial role of the platform will be to provide a mirror reflection of the Government Land Registry systems.

In the cryptocurrency sector, numerous companies relying on blockchain technology such as ‘L-Pesa’ and ‘Belrifics Global’ have gone a step further by launching Initial Coin Offering (ICO’s). ICO’s are a funding mechanism similar to Initial Public Offerings (IPO’s) in which startups sell their underlying cryptocurrency tokens in exchange for bitcoin.

Such advancements and application of blockchain locally appears to have contributed greatly to the fact that Nairobi was chosen as the host of the 2018 World Blockchain Summit in March.

Blockchain technology is a revolutionary tool that will change the way we do business in a lot of different sectors from the land registry to the financial sector and practically every industry that has great data management needs. The ultimate question therefore is not if, but when will this technology’s application will become widespread in Kenya.

 

Jeff Kinuthia is a lawyer specializing in corporate and commercial law. He can be reached on njeffkinuthia@gmail.com 

Social Shifts That Mark the Present State of Kenya

Guest Writer
19 June ,2018

by Wangari Kibanya

Conversations around the word millennial make me wonder, why would we need to contextualize our social and economic shifts from a very US American lens yet our nation is only 53 years old and did not undergo some of the shifts that mark the demographic markers on that end? What happens when the word millennial is deployed in the larger Kenyan discussion? When we label young people and how they act or contribute to society?

When we discuss the different generations, we use the terms – Baby Boomer. Generation X, Generation Y or Millennials and Generation Z /iGen (yet to be crystallized.) This illustration shows what characteristics have been assigned to each of these demographic groups, and the language we currently use to describe people within our workspaces. It shows US American centric culture dynamics. What makes each generation unique? According to US Americans, it is differences in technology use, work ethic, values, intelligence, among others.

The thinking behind all the demographic labels we use to define our workforce dynamics are informed by the United States. Maybe it is time to localize these labels and develop the language and apply a different context for the Kenyan workspace (which may also hold true for a lot of African countries).

The recent history of Africa can be defined as pre-colonial, colonial and post-colonial. How has the Kenyan workforce morphed from independence to post-independence? What are the demographic characteristics that we can use to shift the conversation around how we develop strategies for understanding context and the role it plays?

Kenya gained independence from Great Britain’s colonial rule in 1963, and this ushered in the Africanisation policy. Pre-independence dynamics saw colonial Kenya define and demarcate drastic social shifts in systems of production, culture, religion and economies. Different communities that were merged to make the Kenyan project moved from agricultural, pastoral and gatherer means of sustenance to a money economy – new crops, language, religion and vocations.

This is the starting point of a change that brought Kenya into the world. The different markers for each generation also determine expression, how ideas spread, their conversations and world views. A person born in a certain time period may have more privilege that one born in another time. This privilege is rarely acknowledged. Maybe this is why talk of younger generations having it easy crops up in conversations about the good old times. According to many, younger generations are “spoilt”.

How can we think about the Kenyan workforce in a new way? What are the educational, political, and social markers of each generation? Within each of these broad categories, you can also map and expand different sub- groups and cultures to get more nuances on each demographic label.  The main consideration for the social, cultural and political characteristics what happened around them as they made the leap from childhood to adulthood.

1963 – 1978: Uhuru generation

This generation came up during the Africanisation of labor market, and took up jobs in the civil service, leading to rapid expansion of formal economy. Africanisation ensured that new jobs were created in Kenya’s post-independence economy. They had (and still have) jobs for life in the civil service, and there were limited education opportunities. This led to the wide availability of jobs. Public services were functional in their time.

First and second generation Kenyans were able to get through formal education system, from 3R (reading, writing, arithmetic) to university education. There were airlifts to the United States and Soviet bloc countries to train a professional class, as well as expansion of education facilities in Kenya, and Kenyan music (Benga especially) dominated the airwaves with influences from the Congo – they even had global recording studios such as Polygram set up shop here.

1978 -1982: Early Generation

This generation was born into a constitutionally embedded one party state, and witnessed succession from the first president of Kenya as well as a coup attempt, which radically shifted Kenya’s character.

1982 – 2002: Nyayo Generation

This generation experienced a change of education system from 7-4-2-3 to 8-4-4. We have experienced state repression, currency controls and price controls. Structural Adjustment Programmes (SAPs) have had a great impact on our experiences of public services such as education, health and infrastructure.   We saw the liberalization of the Kenyan economy, including the free market, privatization of public services, and a public service hire freeze.

We have witnessed the rise of Information Technology as an industry, boosted by computerization and dial up internet access. There was increased uptake of opportunities abroad by Kenyan students and professionals (which led to “brain drain”) due to political and economic conditions. We experienced news from a monopoly broadcaster (KBC), and Congolese and vernacular Kenyan music defined our audio experience.

2002 – 2010: Children of democracy

This generation has witnessed the expansion of democratic space. Freedom of expression and creativity in the film industry, art and music was burgeoning at this time. The Kenyan Hip Hop scene grew due to the presence of labels such as Ogopa DJs and Calif Records, and there was an increase in literary output from collectives such as Kwani? TV and radio frequencies were liberalized, leading to a rise in independent/commercial media houses.

There was a geopolitical shift to engage more with the East, leading to the entry of China in megaproject infrastructure funding. This generation has experienced the enhanced use of technology for everyday life, as well as increased global connections due to internet use (due to the landing of fiber optic cable on Kenyan coast.) This led to better connectedness of Kenya to the outside world – more Kenyans got online as the cost of internet significantly reduced. Mobile telephony grew rapidly with the entry of KenCell Safaricom.

There were many diaspora returnees at this time, and new constitution was promulgated at this time. There were also curriculum changes in primary and secondary schools, with a reduction of examinable subjects.

2010 – Current: Digital natives (Generation Z/iGen)

This generation is experiencing an even greater merge of Kenya with the global space on the digital frontier. They have grown up using mobile devices, high speed internet and broadband. There is an immediacy in the adoption of global trends, making it to almost every part of the country. There has been a screen shift to mobile rather than legacy media, and a change in news dissemination and cultural trends in the age of viral news and trends on Kenyan Facebook and Twitter (#KOT.)

This generation is coming up in a time of unemployment and underemployment, leading to a growing gig economy and the emergence of the “hustler.” There has been a demographic shift in the makeup of our population, and an expansion in the creative economy (we have photographers, videographers, writers, actors, poets, fashion influencers, Instagram and Facebook popup shops.) This generation has seen a rise in self-publishing on platforms like WordPress, and self-promoting created content on platforms like YouTube. There has been more privatization of services, and the rollout of a new curriculum in 2017.

*

With this basic frame of the different slices of the demographic shifts and labels, perhaps we can reimagine and develop strategies that blend both global thinking and local dynamics that underpin our interactions with Kenyan youth, and understand why it is important to contextualize demographic labels.

The Dynamics of Corruption in Kenya

Guest Writer
12 June ,2018

by Robert Munuku

It is expected for governments to be corrupt. This is a reality, not a vindication – of course corruption is wrong. But at the very least no one gets a heart-attack from surprise upon hearing that government is corrupt.

The most injurious things are those that are an unexpected, because they go unseen then untreated as they operate from the shadows. Corruption in Kenya is not a government phenomenon, but a nationwide one, pervasive in social life and hence all institutions. To deal with corruption we have to deal with many things, preferably at a micro-sociological level. To attempt to deal with it (as we are now) at a macro-level would be futile because at the macro-economic/political levels, corruption is guarded by the very same people/institutions with the power to do something about it. It’s like going to a Kenyan police station to report police brutality and expect results

We as the Kenyan population are also not organized enough, willing enough & politically neutral enough to unite and mobilize towards a fight to end corruption. The middle-class is busy trying to get richer so that they can join the elite upper class, so any malcontent with corruption is often a front to show they care, when they really only care about upward social mobility. Likewise, the elite is more concerned with protecting their already acquired wealth.

Once we accept that corruption in Kenya is not unique to government, we also need to remember that the institutions that traditionally had more muscle than the individual to fight corruption are themselves corrupt – this is what some call the civil society. Civil society in Kenya has been tainted by the commercialization of activism. It is marred with self-interest often hinging on foreign funding. Cartels now too exist in civil society because they need to keep securing funds to keep their NGOs functional, and what better way than to ensure that there’s a constant state of chaos?

Civil society may come in to support a fight against corruption, but this is because their interests shift with the tide that pays their bills. Today it’s climate change, tomorrow it’s the girl-child, the next day it’s water and sanitation, and the next week its poverty reduction. Those who fund civil society from outside the country don’t do so because they love Kenya so much, but because they too want to front foreign agenda to African states like ours, which is a form of neo-colonialism.

The media have one of the most powerful tools – voice, and distribution channels of the same. However, journalists often also fall victim to corruption themselves, being paid off to steer conversations in a certain way (brown envelopes) or to outright kill stories. This is not surprising, because the media houses are owned by individuals who are often politically aligned. Perhaps non-mainstream media & independent journalists are the ones we can count on

Religious institutions are also participants and beneficiaries, because political leaders are usually aligned with one (or more) of the religious denominations in the country, leading them to shy away from harsh criticism.

I believe that the fight against corruption is a one we all need to deal with at first as individuals. But that can only happen if we truly believe it’s wrong. But do we? Or do we wish we were privy to the same wealth that it brings, and only fight it out of spite?

Robert Mũnũku is a visual artist, writer & filmmaker based in Nairobi. Mũnũku is also the founder of Mau Mau Collective which is an organization that seeks to create a strong network of independent visual artists, filmmakers & performing artists on the continent. Follow him on Twitter @robertmunuku

A Health Agenda in Jeopardy

Guest Writer
5 June ,2018

by Dr. Sakulen A. Hargura

Universal health care is a noble idea that is long overdue. For it to bear fruits and build a permanent home in our system, certain fundamental pillars that must be erected. The most important are sound healthcare policies, and adequate expertise to execute the plan contained in those policies.

Kenya has never been short on laws and policies (our constitution attests to our ability to formulate laws and policies). However acceptance, implementation and execution of these laws and policies has always been our weakness. Health is a basic human right. The post independence regime, and subsequent ones as well, laid the foundation for self sufficiency in health. The walk to self sufficiency, however, has been painstakingly slow. So much so that 55 years after independence, we do not have a fully functioning health care system (the kind of which Cuba is renowned for).

Kenya has had shortage of doctors since independence because for a very long time, it relied on only one institution (the University of Nairobi) to train both general physicians and specialists. This hampered the efforts to attain sustainable health care and ensured a constant injection of a low number of doctors into the system, which tried to maintain the distribution of specialists and general medical officers to all corners of the country.

Through remuneration that was commensurate with work environment, for example hardship allowances, and prioritization of doctors in hardship areas for masters study scholarships, the government gave doctors an incentive to move to the far off areas. These scholarships were systematic and deliberate so as to ensure not just constant supply of specialists, but to give the government the leverage to post the new graduate specialists to areas of need as well, be it in the major cities or rural areas. All the original blue print needed was expansion of capacity by giving more universities the resources and mandate to open medical schools in order to expand the inadequate human resource.

The change the Kenya’s public health care system needed to thrive finally arrived at the turn of the millennium with “parallel” degree programs. Medical degrees are long and expensive, and most public universities opened Schools of Medicine to benefit financially. Just as the first batch of these new graduate doctors joined the system, devolution happened. While devolution was meant to attain equity in resource sharing, it was mired by political hogwash that resulted in decisions that were not entirely aligned with the spirit of our constitution. Health was earmarked for devolution, but how to do it without deflation of the existing weak healthcare infrastructure and systems hadn’t been well thought out.

Kenya’s health care was a casualty in the territorial wars pitting Uhuru Kenyatta’s national government against the 47 county governments. To devolve health in its entirety, including human resource, without first holding forums to educate the governors and county health executives on the internal workings of Kenya’s health system was a wrong move. What county government needed was the control and management of the health facilities and infrastructure, as well as the health workers sent to their hospitals by the central government. The core hiring, distribution and training of health workers should, however, have been left at the Ministry of Health until such a time when devolution had been tested and matured.

Right after the hasty devolution of health, many doctors (especially specialists) exited public health care. Many of the counties affected have yet to attract them back despite concerted efforts. The chaos that followed resulted in a disgruntled work force as salaries delayed, the state of health facilities worsened, and the agreements signed with central government prior to devolution were disowned. The county governments not only failed to absorb new graduate doctors churned out by our universities but also refused to release those selected for masters study scholarships. The result was unnecessarily long strikes as central and county governments quarreled over who was responsible

At the moment, we are in a debate about the Cuban doctors joining our healthcare systems. While their credentials and proficiency are not in question, does Kenya need the Cuban doctors or does it need their healthcare system?

Kenya has a shortage of doctors, yet governors have persistently failed to absorb new graduate doctors who have completed their internships leaving them jobless. The same governors have refused to release countless doctors who have been given scholarships to study for their masters to add to the dwindling specialist numbers, with the excuse that they will be absentee employees. This not only denies citizens access to health care, but also derails Kenya’s ability to reach sufficient specialist numbers in the future. The system borne of hurried devolution is gutting Kenya’s public health care.

The Cuban doctors may be appealing, but their presence will not contribute to Kenya’s long term plans of sustainable universal health care. According to the government, they will serve at the grassroots level. This means they will not contribute to systemic education of new specialists in the country, nor will they help drive national policy at the helm. What happens after two years when the Cuban doctors bid us farewell? Do we then have the same program with India?

To bring in Cuban doctors with our existing system, or lack there of, is to transplant a branch of a flourishing tree onto a dry tree. Moreover, to base Kenya’s universal health coverage on a borrowed work force is to throw the seeds of a noble idea on to the rocks.

I believe that Kenya needs to restore the pre-devolution health care system in terms of training and distribution (posting) of doctors so as not to leave the fate of Kenyans in the hands of individual governors. Only then will we see the fruits of the increased numbers of doctors in the country. A body like the Health Service Commission (HSC) could be put in place as a bridge between the county and central governments to enable smooth movement of doctors through the two arms of government for training and posting.

We also need to borrow Cuban health policies, and some of their policy-makers, to duplicate their health care system. If at all their specialists are also brought in, they should be posted to universities and teaching hospitals to help train our doctors, not just to counties where upon the expiry of their tenure they will leave little in terms of long term impact.

Uhuru Kenyatta’s intent and will to implement his big four agenda should be well-informed and concerted. Instead of this public relations exercise, those entrusted with the duty of implementing this agenda should dig deep and consult concerned stakeholders so as to bring holistic and sustainable policies that will see us through another half a century.

Sakulen Hargura is a medical doctor presently pursuing masters in surgery in Turkey. He loves to read, and writes poetry as well as a weekly opinion piece for the Marsabit Times.

Why We Should #Repeal162

Guest Writer
20 March ,2018

by Elizabeth Kabari

You may have seen the hashtag #Repeal162 on your social media feeds recently. Some of you are sure that it concerns you; others are sure that it doesn’t. However, it should concern everyone because it is a human rights issue, and the denial of rights for one is a denial of rights for all.

The #Repeal162 movement is a part of the struggle for the recognition and protection of the rights of the LGBTQIAPK community in Kenya. It consists of 2 ongoing court cases: Eric Gitari v Attorney General & another (Petition no. 150 of 2016) and John Mathenge and 7 others v Attorney General (Petition no. 234 of 2016).

The main purpose of these petitions is to ask the court to declare Section 162 (a) and (c) and section 165 of the Penal Code (Cap 63) as unconstitutional and therefore inapplicable in Kenya.

Section 162 of the Penal Code makes it a felony, punishable by 14 years’ imprisonment, for any person to:

  1. have carnal knowledge of any person against the order of nature; or
  2. have carnal knowledge of an animal; or
  3. permit a male person to have carnal knowledge of him or her against the order of nature.

Additionally, where the above acts are performed without the consent of the other person or where consent was obtained through force, coercion, lies etc, the prison sentence goes up to 21 years.

Section 165 is similar and states that:

Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.

Both sections fall under the chapter 15 of the Penal Code which provides for “offences against morality.” The Penal Code we have is basically copied and pasted from 19th Century Colonial English criminal law. This chapter in particular exists to ensure that Christian principles, which were very important in England at that time, could be more thoroughly enforced. This is illustrated by the language used in the chapter.

For example, Section 151 criminalises the “detention of females for immoral purposes” while Section 153 criminalises persistently soliciting or importuning for “immoral purposes”. The phrase “immoral purposes” as used in these sections means a sexual purpose. This conflation of morality and sex is a very Judeo- Christian idea. Furthermore, Section 165 criminalises “gross indecency” between men. The term “gross indecency” is defined by the Oxford dictionary as “a term formerly used to denote certain criminal offences, in particular sexual activity between men (before this was decriminalized) and sexual offences against children”. The Judeo-Christian influence shines through here too.

The purpose of the law should not be to enforce morality, Christian or otherwise. Law should be a means by which people’s behaviour is regulated to ensure they do not harm each other and can co-exist peacefully.

What’s the difference? Morality is a fluid and subjective code. Every culture, religion, group has its own moral code, and this code is constantly changing and evolving to suit the needs and context of the people. Therefore, the law cannot be a tool for enforcing morality in non-homogenous societies such as Kenya which consists of at least 44 tribes, at least 6 religions (if you cluster all the various Christian denominations into one religion and traditional religions into another), 3 main economic classes…the list goes on.

With all this diversity, it is impossible that we will all subscribe to the same moral codes, and even more impossible that we will all agree on Christian morality as the way to go. Thus, the law should be neutral.

This concept is acknowledged in our Constitution. We note that one of the reasons we adopted our Constitution is because we are “…proud of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation.” We recognize that to live in peace together, we need to come up with a common set of supreme rules which bind and protect everyone. We accept that we cannot depend on our individual moral codes if we are to co-exist because if we do so, we exclude Kenyans who do not subscribe to the same code from protection and recognition by the law.

In the case of Section 162 and Section 165, we have not only excluded the LGBTQI community from protection by the law, but also justified their persecution.

Furthermore, there is no definition in Cap 63 of the phrase “against the order of nature” which is used in Section 162(a) and (c). If we were to interpret is as lay people, there would also be no way to determine what the “order of nature” is. Nature is as nature does and thus varies from species to species and from time to time.

However, the Kenyan courts have accepted that whatever this phrase means, it includes sodomy, more specifically, anal penetration of one man by another. This interpretation is one that was inherited from England, just like our Penal Code. I used the phrase “includes sodomy” because, from my understanding of the Kambi case referenced above, sex that is “against the order of nature” does not seem to only be limited to sodomy. Hence, case law only gives us a partial definition.

If we are to assume based on this partial definition and our understanding of the origins of the Penal Code, and purpose of Chapter 15 in particular, that the natural order of sex is sex for procreation, then any sex that cannot result in reproduction is outlawed by Section 162(a) and (c). This includes: oral sex, hand-play, anal sex etc. It is irrelevant whether the sex is between heterosexual participants or homosexual participants.

Section 162(c) makes it clear that consent is not a defence as it expressly outlaws consensual sex merely on the grounds that it is “against the order of nature”, that is, against the Christian idea of what sex should look like. Meanwhile, Section 165 criminalises all sexual activities between men regardless of whether there is consent or not, because that is not how Christianity envisions sex. The criminal element in these sections is derived purely from the kind of sex being had, not because there is anything inherently wrong with said sex, but because the Bible decreed it to be wrong.

While there is nothing wrong with subscribing to Christian ideals when it comes to sex or anything else, this is a personal and private decision in which the state should not interfere. Similarly, where people choose not to subscribe to Christian ideals, the law should not interfere. The law only comes in when, in upholding their beliefs, a person goes against the supreme rules that we have all agreed on – the Constitution. For example, in the case of sexual relationships, the law should only come in where a constitutional right is violated, such as nonconsensual sex, which violates the right to human dignity (Article 28) and the right to freedom and security of the person (Article 29).

By forcing Christian ideals on all Kenyans, Section 162 (a) and (c) and Section 165 violate the right to freedom from discrimination (Article 27), the right to privacy (Article 31), and freedom of conscience and belief and opinion (Article 32).

Finally, there’s the issue of enforcing these sections. When addressed promptly and efficiently, it is easy to prove sodomy (in this instance, I use sodomy to mean the nonconsensual anal penetration of one male by another) and bestiality. However, in the case of the consensual sex criminalised by Section 162(a) and (c) and Section 165, how can you prove anything happened?

In the first place, you have no victim(s), thus no complaint to the police and no P3 form. This means no material evidence.  And, unless this sex was had in public, you have no witnesses and consequently, no oral evidence. How can you prosecute such a case? You can’t; at least not successfully.

Because of the difficulty in actually proving these cases, the police seldom bother to follow through with arrests made under Section 162 and 165, unless the offence complained of is sodomy or bestiality. However, this does not stop police from raiding gay bars and other gay-friendly spaces to harass patrons, threaten them with charges of prostitution and sodomy, and in some cases, arrest and extort them for money. This is a blatant violation of human rights.

Chapter 15 also leads government officials to believe they have the power to outlaw events that they think promote homosexuality. While such declarations have no standing in law because they are procedurally defective, they are still effective and interfere with the lives of Kenyans generally, be they part of the LGBTQI community or not.

Whichever way you look at it, be it from a validity standpoint or from an enforcement point of view, Section 162 (a) and (c) and Section 165 of the Penal Code have no place in Kenya. They call for the State to insert itself where it does not belong and interfere with Kenyans’ enjoyment of their rights. They also enable the harassment and extortion of Kenyans by police. 

Most importantly, they threaten the diversity we cite as a point of national pride in our Constitution. which is why we all need to support the #Repeal162 movement.

Elizabeth is an advocate with a passion for human rights and a love for research and reading.

Devolution and The Shisha Ban

Guest Writer
30 January ,2018

by Elizabeth Kabari

On 28th December 2017, the Public Health (Control of Shisha Smoking) Rules were gazetted and came into force. These rules effectively banned the manufacture, importation, sale, and use of shisha by criminalising these acts. Anyone found doing any of the above shall, upon conviction, be liable to pay a fine of not more than KES 50,000 or be imprisoned for a term not exceeding 6 months, or be made to pay the fine and serve the sentence. If you continue to repeat any of the above offences, you also get fined KES 1,000 for every additional day you continue to break the law.

The rules were made by the Cabinet Secretary for Health, Dr. Cleopa Mailu. The CS explained that the rules were made to protect public health – he claims that, in addition to being harmful in itself, shisha is a gateway to other drugs such as heroin. He therefore made the rules pursuant to his power under the Public Health Act, specifically Section 36(m).  

These rules have caused a lot of uproar both online and offline, with former Chief Justice Willy Mutunga tweeting that the ban “smirks of hypocrisy and dictatorship” and shisha traders moving to court to get the ban lifted. However, what I find most striking about this ban is that it shows that the government still doesn’t fully understand how devolution works. Here’s why:

Eight years ago, Kenyans adopted a new constitution. It was hoped that this constitution would usher us into a new era of citizen-centred governance which focused on human rights, true democracy and equitable distribution of resources. To this end, a key element of the new constitution was devolution; that is, the separation of the government into two levels: the county level and the national level. Powers and functions were then divided between these levels so that we can improve the delivery of public services to wananchi and enable Kenyans to effectively govern themselves.  

One of the functions that was devolved was health. The Fourth Schedule of the Constitution devolved health as follows: the national government was tasked with creating health policies and managing national health referral facilities (that is, Kenyatta National Hospital and Moi Teaching and Referral Hospital). The county government was tasked with managing county health services which includes all other hospitals and pharmacies, ambulances, primary healthcare etc. The counties were also tasked with controlling drugs and pornography.

The transfer of the function of health from the national government to the county governments was completed in August 2013. However, to date, many of the laws which existed before 2013, have not been amended to reflect the changes brought on by devolution.

The Public Health Act is one of these laws – it still has provisions that are not in line with the Constitution and therefore have no force in law because the Constitution supersedes all laws. Unfortunately, Section 36 of the Public Health Act is one of these sections. It empowers the CS to make rules where “any part of Kenya is threatened by a formidable epidemic, endemic or infectious disease.”  

The function of preventing epidemics is a part of primary healthcare which makes it a county government function. This means that the powers given to the CS under Section 36 are, in this new constitutional dispensation, not actually his to exercise. The only power the CS has is the power to create policy (not law) to guide counties on how they should deal with such diseases.

Even if the above was not the case, and prevention of epidemics was a national function, the rules would still have been based on shaky legal ground. This is because Section 36 of the Public Health Act applies to formidable epidemic, endemic or infectious diseases. To clarify which diseases these are, the Act provides a list. They include smallpox, plague, Asiatic cholera, yellow fever and sleeping sickness or human trypanosomiasis (basically, serious diseases that are be passed by air, contact, being bitten/stung etc).

The diseases caused by shisha include cancer, heart disease and respiratory problems. None of these are diseases that the Public Health Act considers formidable epidemic, endemic or infectious diseases. Therefore, they are not covered by the powers given to the CS in Section 36.

The purpose of the rules, as their title succinctly puts it, is the “control of shisha smoking.” The rules then proceed to define shisha as “…tobacco products that may be flavoured or unflavoured…”. As we all know, tobacco is a drug. In a nutshell, the purpose of the rules is to control a drug. Control of drugs, as we’ve already seen, is a county function. The Cabinet Secretary cannot perform it. The most he can do is issue a policy to guide the counties on how the they should tackle the issue.

Despite all these legal barriers, the rules were made and gazetted into law. Consequently, we now have a law that has been passed by an organ of government that had no power to pass it, which regulates a matter that the organ has no power to regulate. This puts us, as a country, in a very confusing place: do these rules have the force of law? Are we bound by them? Assuming someone is arrested for manufacturing, selling or smoking shisha, can they be tried?

Hopefully, the courts shall answer these questions and give us a precedent for how we should proceed when such circumstances arise (because they surely will). Until then, it seems we’re confined to a life without shisha.

 

Elizabeth is an advocate with a passion for human rights and a love for research and reading.

Breaking Bread in Eastleigh

Guest Writer
21 November ,2017

by Bethuel Muthee

Food is a personal thing.  We have individual preferences to what we eat, where we at, and even with whom. The smell of a food we like engages our memory, we can even taste it on tongues, we think of good times, of people we have not seen in years. In most cultures when people come together, there is food to be shared among those present. Sharing a meal is an act of communion, an affirmation of life, it is welcoming others into what is a highly personal activity and space. It is an encounter with the world that can be as simple as the gesture of breaking bread; to have a plate of food, thus, is also political.

In a country in which food is used as metaphor for political power- kukula nyama, our turn to eat- what does it mean that millions of Kenyans cannot regularly access sufficient and nutritious food? What does it mean that those entrusted with the task of ensuring food security are embroiled in scandals involving food in national reserves? Where “eating” is the denial of basic needs for millions, what does economic justice mean? Food security is more than what is portrayed as a problem of famine, extreme hunger and food aid, it is a problem that means the availability of food, economic, physical and social access to nutritious food for all. It is a human right that ensures that all people are able to feed themselves in dignity.

Article 43 (1) (c) of the Constitution of Kenya is a political commitment in which every Kenyan has a right to adequate food of an acceptable quality The Constitution in Article 21 (2) also gave mandate to the state to take legislative, policy and other measures in order to fully realize the economic and social rights of all Kenyans. In acknowledging the right to food, the government provided a basis for analysis, action, accountability, and continuity even after government change. The government has the duty to respect, protect and fulfil the human right to food and guarantee its enforcement. Kenyans were given a claim with which demand and realise their right to food by establishing procedural and legal means necessary for providing solutions against the state for failing in the commitment to guarantee the access to food.

It is with this in mind that on Sunday 27th August, seven years since the constitution was promulgated, during the Nai ni Who? tour through Eastleigh organised by the GoDown Arts Centre, I sought to observe the daily practices and cultures surrounding food, to immerse myself in the tastes available, in the joy of sharing with others in an attempt to understand what it means to be food secure within an urban context. As we set out from Saint Theresa’s Church, our agreed meeting point, we were handed maps and it is with this that I sought to explore the routes to food.

Famous as a business hub and the second highest earner of revenue in the city after the central business district, Eastleigh is a bustling neighbourhood that offers much to be observed. Following the outbreak of bubonic plague in the early years of Nairobi, Indian traders who had run their businesses from the town bazaar were moved east of the river in what was an attempt at managing hygiene and also a method of racial planning, to what would be named Eastleigh in 1921. Also relocated were a  small number of Somalis of the Isaaq and Hawiye clans who had made their way from what was the Northern Frontier District  having come with Hugh Chomondely, 3rd Baron Delamere from his hunting missions through Somalia. The small community continued to live there trading and it was after the implosion of Somalia during the civil war that some Somali refugees who were able to move to Kenya and settle in the area and call it home that it earned the moniker “Little Mogadishu”. Somali writer Nuruddin Farah in his essay “Of Tamarind and Cosmopolitanism” writes of the old Tamarind Market in Mogadishu which he describes as:

This [place] was always abuzz with activities, its narrow alleys filled with shoppers. You could see entire families pouring into its alleys and plazas soon after siesta time, some shopping for clothes, others wishing to acquire what they could find in the way of gold and silver necklaces made to order.

The description is one that could still be used to describe Eastleigh, a cosmopolitan place full of shopping complexes dealing in textiles, electronics, gold and silver, and numerous other products from around the country and the world.  This same diversity is evident in the food that is available, it is a melting pot and its fragrance and tastes are some of the things that make the place what it is, vibrant and always on the move.

After walking through numerous malls with loudspeakers urging passersby to shop along crowded streets, the group takes a break in a hotel and we are welcomed to an important aspect of daily life in the area, we sit and are served camel milk tea. It is served hot and as we sip slowly, we become participants in what we learn is a way of life, the sharing of tea and stories, shaah iyo sheeko. Camel milk widely available in Eastleigh, is transported daily from Isiolo, Moyale and Garissa and is gaining popularity beyond the area for its nutritional benefits. Rich in proteins, iron, vitamins, and lacking lactose, it is a healthy alternative for those who are lactose intolerant. The milk vendors are women who have organized themselves into groups that work together to ensure sufficient supply, they give testimony to the benefits of camel milk including strong bones and detoxifying the body.

Most butcheries we walk past advertise hilib geeb, camel meat, in addition to goat meat and beef. In most restaurants these are served alongside other dishes. Nyirinyiri are small strips of camel meat which are sun dried and for some make for a hearty breakfast when taken along with black tea. In restaurants such as Kilimanjaro Food Court that offers a broad menu that includes Somali cuisine including deylo, young goat meat that is boiled and lightly fried, aleso which is mature goat meat boiled. From my observation, a lot of meals are accompanied by rice which we see being sold in wholesale in stores. Other meals offered include baasta saldato that is prepared using pasta, spices and sauce.

Making our way down Sixth Street past Hidaya mosque, I sit with Fardosa Ahmed. She sells potatoes, carrots, tomatoes, garlic, and fresh fruits as she shields herself from the sun under a fading green umbrella on which the words Day-to-Day can be faintly read. As she packs potatoes into a plastic bag, she bemoans the high prices of food and what it means for her daily sustenance. It is the day before enforcement of the plastic bag ban. She is unsure what that will mean for her business, new alternatives might be more expensive making the cost of things and life in general a little harder.  As I walk away she offers me a clean carrot and tells me it will help with my eyesight, it might help see what I am looking for.

Walking through Eastleigh one question comes to mind – where does the food consumed come from? Is it local or imported? If imported – where from? The stacks of rice in the wholesale shops along the streets are imported from Pakistan while other basic food commodities like milk powder and cooking oil come from countries in the Middle East. The cost of importing goods, transporting it and distribution in the market raises the price of food leading to lack of access to those who cannot afford, who also happen to be a majority.

The Food Security Bill (2014) tabled before the Senate is one of legislative means through which the right to food enshrined in the constitution can be implemented and made a reality. It outlines clearly the objectives to provide a framework that promotes realisation of the right to freedom from hunger, the elimination of discrimination of marginalized groups, mechanisms for coordinated implementation of national policy and county programmes, establishment of institutions that will advance co-operative governance. FAO in 2006 recommended five areas of action for the successful implementation of the right to food: advocacy and training with the aim of strengthening the capacity of government to meet obligations and empowering rights holders to demand accountability, providing information and undertaking as assessment to enable the government to identify those who are food needy, legislation, coming up with strategy and implementation through coordination, monitoring and tracking performance.

It is from Keguro Macharia I learn that political imagination is rooted in our daily experience, in the day to day just like Fardosa’s umbrella. In demanding political commitment to the right to food, to implementation of legislation and policy what do we imagine a food secure Kenya to be? Keguro asks

 

  1. Describe a typical day in this transformed Kenya in as much detail as possible, from waking up to going to sleep.
  2. Describe a typical week in this transformed Kenya in as much detail as possible.
  3. Describe a typical month in this transformed Kenya in as much detail as possible.
  4. Describe a typical year in this transformed Kenya in as much detail as possible.
  5. Describe a possible trajectory for your life in this transformed Kenya in as much detail as possible.

 

By asking political leaders to take up their commitment to ensuring a food secure country in which the right to food is a fact, we must find new ways of imagining the politics of food. It is essential that we come together to co-imagine what Kenya can be and this imagination must be rooted and take hold from the daily lives of those whom this right is denied.  This means moving beyond policy meetings in hotels with five-course meals, it means shifting our language from one of dense jargon to a common language rooted in the quest for freedom and justice for all. It means sharing our freedom dreams, building from that base of collective responsibility in which our day to day experience is acknowledged and aligned to a shared goal: food for all at all times.

The issue of food security in an urban context is one that is frequently overlooked by those who have been mandated with the task of ensuring that all Kenyans regardless of ethnicity, religion, political affiliation are able to have a plate of food on their table. The translation of this right into tangible results requires concerted effort of all charged with the responsibility of implementing the law and devising new ways to think of this problem starting from the local, with small communities, empowering people to understand and demand their rights. It means thinking of the children whose growth is stunted as result of not having sufficient food and making it a priority and not simply a knee-jerk reaction to emergencies. A need to re-think economic policy is vital if the goal is to ensure that food is available to all always.

We need to think of sustainable urban food policy and rethinking space. To be hungry is to be constantly teetering on the brink of anger, it is an immense pressure that might explode as has happened in countries such as Venezuela. We must find new ways of feeding our imagination and our bodies.

Bethuel Muthee (BM) is a Kenyan poet. 

Understanding this political season’s top musical hits: Tano Tena

Guest Writer
22 August ,2017

In part 2 of this two part series Alexander Ikawah takes us through campaign music and what it says about us, who we are and where we are. Part 1 here

This is the second part of a series of essays discussing and explaining the songs that have come to dominate this year’s political season. The first of the series (read here) focused on the opposition’s hits ‘Tibim’ and ‘Bindu Bichenjaga’ and the emotional significance of the message they carried for the opposition side. This second essay explores the same, but for their opponents, the Jubilee side. Since writing that article, more has happened than can be summarized here. Suffice to say, the opposition is not in power and Jubilee stands poised to begin a new term in office.

The main reason I had written the essay was to explain the meaning of Onyi Jalamo’s hit song ‘NASA’ (Tibim!) and particularly, its many seemingly nonsensical words and describe what literary meaning they did carry. The obvious reason why it needed explaining was because it was in Dholuo and despite being so popular, most who listened to it (including many Luos) could not discern any meaning from its words. I had listened to the few musical numbers that bore the message and emotion of the Jubilee side and considered them self-explanatory, particularly because they were sung in Swahili. Their meanings were much more literal and open to public understanding and I didn’t think it necessary to explain the obvious. Subsequent events have convinced me otherwise. Music is not a static art. The meaning and significance of songs can change and morph based on context and circumstance, even based on audience, and the results of the presidential election represent a significant shift in the context and circumstance of all the campaign music created in this election season. I shall concentrate on Ben Githae’s ‘Tano Tena’ which like ‘NASA’ was the most prominent of its ilk and explain how its meaning and significance have been affected by the result.

Let us begin with a discussion of its merits and demerits as a piece of music. Music traverses an intellectual and emotional landscape using language as both tool and medium. In the first essay, Githae’s ‘Tano Tena’ is much simple song. There isn’t much to unpack from its lyrics or melodic arrangement, both are literal and truthfully, uninspired. He may as well have read the lyrics straight from a Jubilee manifesto. In fact, therein lies the song’s greatest weakness… the fact that he relays the campaign’s political messaging almost verbatim leaves the song emotionally vapid, a fact that is evident in the faces of the dancers surrounding Ben Githae in the video. They dance and sing with an energy that in many instances is obviously disconnected from the lyrical content. Even Githae’s face doesn’t always seem to reflect belief in what he sings, his dedication to singing it doesn’t waver though.

It is a simplistic song, you might agree with me that it doesn’t warrant much explanation. In the song, Githae seeks directly to convince listeners to vote for the Jubilee party. In fact, its first line states this intention;

‘Kuna sababu nyingi za kupigia kura Jubilee party…

…wakenya twasema, Uhuru-Ruto, tano tena.’

‘Uhuru-Ruto, tano tena’ proceeds to list development projects that Jubilee has been involved in and list them with each being followed by the tano tena refrain. The video features clips from Jubilee activities and the campaign trail including high definition videos of the SGR launch and others of Uhuru Kenyatta trying out the military equipment that was purchased for the security forces just before the election. The latter video clip accompanies a lyric praising Jubilee’s peacekeeping track record- weapons of violence and death alongside a lyric mentioning peace in a video performance by a gospel musician. The incongruity is startling.

The video also attempts to make a small group of people dancing around Githae appear larger than it is. It fails, cramming the group into frame in an unappealing composition and forcing some to peep between the heads of others hoping to appear on screen. It also includes one man whose costume is fashioned after the security forces; a suggestion perhaps that the security forces too are in the camp Githae sings in support of. Indeed in the aftermath of the election result announcement, it is not an unreasonable supposition to make.

Musically, and from the standpoint of literature, it must be stated that ‘Tano Tena’ has few merits. It is no wonder then that Ben Githae was singled out by his primary gospel audience as well as the general public for particular censure for composing and performing it. In one instance, he is invited onto The Churchill Show as a guest for what seems to be the sole purpose of ridiculing him over it. He is well aware of this and takes it gracefully, only seeming flustered when the hosts, in an instance of what might be described as musical bullying, remix his live performance of ‘Tano Tena’ with segments of Onyi Jalamo’s song, specifically the word ‘tibim.’

‘Kuna sababu nyingi za kupigia kura Jubilee party…

Tibim!’

From a musical standpoint, The Churchill Show basically endorsed NASA with that action and paid homage to Jalamo’s musically superior composition. That the show did it and got away with it and that the audience found the incident funny says something about the emotional momentum that Jalamo’s song and its message had already built up at the time. Githae might have been left with egg on his face then but as another popular Kenyan musician once asked in a hip hop song, ‘Who is laughing now?’

Then there is the matter of genre. Jalamo’s song is of the ohangla genre and stays true to the genre’s specifications, even in the direction and execution of its two different videos. Githae is a gospel musician but this isn’t a gospel number. It is a secular song, and even worse, it is a secular song that ran the risk of alienating a large section of Githae’s own gospel audience who may not have necessarily carried the same political views. Githae was forced to defend his decision to compose and perform it multiple times and did so by saying that he had a right to a political opinion just like everyone else. This is not a demerit, but it certainly affected the reception of the song. Many accused Githae of putting aside the word of God to make some quick cash from the campaign trail and considering his stature as a musician, one might ask; Was it all worth it? At the last NASA rally, MC Mudomo Baggy hinted at a reason why he was involved. “Baada ya tarehe nane kutakuwa na ofisi ya wasanii pale state house karibu na gate, mimi nitakuwa na ofisi ndogo hapo.” He is a comedian, he might have been joking, but the state of the arts in the country is such that I wouldn’t begrudge Githae for making his bet. I would have warned him however that his audience would not like it.

There are unwritten rules regarding the discussion of political themes using music. Specifically, there is a history of propaganda through music that Kenyans have learned to be wary of and to resist. The kind that was practiced and perfected by the regime of Daniel Arap Moi. This unwritten rule is closely connected to the privacy and exclusivity of local languages and seems to state that songs tackling politics, especially those in praise of regimes or leaders, are only to be trusted if performed in local languages and in traditional genres. The underlying logic relates to both culture and economic class and assumes that music in traditional genres such as ohangla is conspiratorial and private, intended ‘for the house’ and therefore must not be insincere. Any insincerity is considered traitorous and is punishable by something akin to banishment or ostracism by the community who form the primary audience for these forms of art. To see an example of this, just type the words ‘Atommy Sifa exile’ into your web browser’s search window and hit enter. Political music in Swahili and English is perceived by the masses as either propaganda or activism, both thought of as elitist pursuits.

In our political context, Githae’s music is certainly in service of ‘the house’ as the regime whose praises he sings belongs to his community so he is in no danger of any such punishment. However, choosing to do it in Swahili in an attempt to be ‘inclusive’ brought this song uncomfortably close to the ‘Tawala Kenya’ kind of sycophantic PR music that the Moi regime was so famous for and indeed Githae’s fan base has suffered for this. And it isn’t just his language and content that smells of Jubilee PR, his choice of video characters seems tailored to appear ‘inclusive’ with the kinds of amateur dancers who would never appear dancing in any regular music video, even gospel.

This false inclusivity, embodied in Swahili lyrics and an association with gospel music was also evident in the Moi regime’s use of choirs and gospel musicians. I stated in the previous essay that the fact that various cultural performers contributed music to the opposition’s cause was proof that the path to true peace and inclusivity lies not in any national umbrella language but in a greater focus on our local ones. The crowd at Uhuru Park for the opposition’s last rally, mostly Nairobi voters, roared in appreciation when Esther Muthoni Passaris shook herself to the beat and shouted ‘Tibim!’ upon their request. She subsequently trounced Shebesh in their race even though they booted Kidero, a NASA bigwig by all accounts. Passaris is Kikuyu, Kidero is Luo. What the crowd did asking Passaris to dance to Jalamo’s song was not about ethnicity but about class, they requested proof that she was not too elite to enjoy their music and she was humble enough to humour them. I stated in the first essay as well that there is a split between two economic classes, an ‘elite’ class and a group I called ‘the ground’ – or ‘the masses’ to some. It is the elite group that seeks to nationalize identity with language and with religious association, a malady even the opposition elites were guilty of this year. The ground is largely secular, and is welcoming to all languages, ethnicities, and cultures as long as they are willing to try dancing to a new kind of music. To their credit, the opposition succeeded in building a movement to which the masses were ready and willing to invite themselves with their different cultural musics and languages. The Jubilee side failed to inspire the same adoration. If the music of both sides is to be compared, this year, the opposition side embodied the dreams and emotions of the ground/the masses while Jubilee stood for and represented the elite.

In a statement made after the declaration of the contested presidential results, NASA doyen James Orengo cites ‘Bindu Bichenjaga’ as having carried a prayer that the electoral body had heartlessly betrayed. Things did not change – in fact the election seemed to mirror the two before it, including the fact of disproportionate violence meted out against the innocent in opposition strongholds and protesters expressing their disappointment with the manner and result of the election. Perhaps it is fitting that the most prominent of the songs that were produced to express support for the side that was pronounced victorious is Ben Githae’s ‘Tano Tena’ – Five more.

For the supporters of Jubilee, Githae’s song might sound like an anthem of triumph. Five more years of perceived advantage. Five more years of their man (or men) at the helm. For supporters of the opposition though, Githae’s song means five more years of the policies and promises that so many of their songs had cited as failures and expressed disappointment with. Five more years of the ills that had publicly bedeviled the country under the first five years, particularly corruption. And if the response of security agencies and government bodies to the protests that followed the elections are anything to go by, including the recent deregistration and harassment of the KNHCR and other human rights organisations, then it also means five more years of blatant human rights abuses and impunity. And as many pundits and political commentators have pointed out, these things are also reminiscent of another political era whose times no one wishes to revisit. To them, a more befitting hook for the song would have been, ‘Moi tena!’

In a photo of Uhuru Kenyatta published a few days after the contentious presidential result announcement, he can be seen together with the musician, both with broad smiles on their faces. Ben Githae’s gamble, its musical quality notwithstanding, has paid off. Jubilee may not have fulfilled the promises it made to artistes in its first term but if that small office for artists is ever built at the white house, it is more likely to be Ben Githae with a desk there and not Mudomo Baggy. Perhaps in his opinion, that was worth losing a section of his gospel music fan-base to secure.

The thing about campaign music is that if your side loses, its songs risk becoming irrelevant. If your side wins on the other hand, their significance remains, even increases. There is always a contest between the musics of the different sides and this year, Tibim and Bindu Bichenjaga might have put up the grandest show but it is ‘Tano Tena’ that wins. It is ‘Tano Tena’ that remains relevant now, whether it is a good song or not. And after the drama of the election results one is tempted to ask, who cares about merit in Kenya anymore?

Alexander Ikawah is a writer and filmmaker living and working in Nairobi. His work has been published in magazines Jalada, Kwani? and Lawino.

Understanding this Political Season’s Top Musical Hits: Tibim Bindu Bichenjaga

Guest Writer
8 August ,2017

 

In part 1 of this two part series Alexander Ikawah takes us through campaign music and what it says about us, who we are and where we are. Look out for part 2 next week. 

Each political season campaign trucks drive around town blaring music as frenzied youth dressed in campaign merchandise dance in, on, and around them. You might imagine that the choice of what music to play is critical. Inevitably, some songs rise to the top of the pile and come to embody the message of one or the other side of the campaign. In the period preceding the 07/08 election, the song that had come to occupy that spot for the opposition was an ohangla hit called ‘Raila Kar Chakne’ by Onyi Papa Jey. It is a magnificent song. Magunga Williams captures it thus:

“His song “Raila-ODM” did not become a favourite simply because Raila Odinga was currently the heartthrob of the nation, most favoured to win the 2007 election and highly likely to become the 4th Commander-in-Chief of the Kenyan forces. No. Well, maybe in a small part this was also a factor. But to give credit where it is due, this was not just a song. This was a soundtrack to the coming to life of a dream that Luos had longed for, for nearly 40 years. A presidency.”

And indeed the song is epic in scope, covering a multitude of Raila’s achievements but particularly the struggle for constitutional reform embodied by the orange movement. It attempts to rally all the coalition’s allies and acknowledge their support. It urges calm in Kisumu(Beduru mos) and features a soccer game in which Jakom scores the winning goal.

This year, the airwaves are ruled by Onyi Jalamo’s ‘Tibim’ a song you have probably heard. I intend to discuss it because it is the most popular, however, there is another song perhaps more deserving of the limelight that I shall discuss too. ‘Bindu Bichenjaga’ by Amos Barasa. The former appeared on youtube as a grainy video that quickly became viral. As of now, two versions of the original have a total of about a million views. It is the noisiest tune on the streets at every NASA event, the campaign song by popular demand. The latter is a more musically and lyrically complex traditional song by Amos Barasa that made its debut early this year. The most popular youtube version had a modest 271,206 views by the time I was writing this article but I intend to discuss it as well because it is, by my judgement, the best composed of the lot this year and the closest in scope and emotion to Onyi Papa Jey’s classic.

I also wish to discuss something else, the disconnect between two types of voters and two types of musics that the campaign period reveals. These campaign songs are undeniably crucial to the political process and yet they operate in some lesser media space, occupying the airwaves of local radio stations and emerging to seemingly surprise the national media who then do inadequate and token analysis of their meaning and significance, confident that after the season, they shall be irrelevant once again. A cursory understanding of the music scene suggests that these musicians are largely invisible to the media in the period between elections and then if their song becomes a hit, suddenly become news. And the media often neglects to do its due diligence in covering and discussing their role and impact. It is as though there is a caste system in the music world and the election season presents the only chance for a certain group of musicians to achieve national relevance.

NASA (TIBIM!)

In a news story aired this April, Ouko Okusah declares that this season’s hit song ‘Tibim’ is, “one of the lousiest piece of music ever produced in this millennia.” He proceeds to denounce its lyrics as being empty and reeking of substandard creativity. In particular, he singles out the word ‘tibim’ whose meaning he does not explain. He declares the video pathetic as well. He is only half right about the video, but he is dead wrong about the quality of the song. He looks at the video but he does not see what it shows. He hears the music but its meaning is beyond him, so he assumes there is none. And he marvels at the ‘masses’ dancing to the song all over the country. Ouko Okusa is no stranger to ohangla, I am tempted to wonder what it might be that made him miss the meaning of this song, hiding in plain sight. And in this case, in plain lyrics. He ends his story with no insight into the song, and no reasons given for the insults levelled at another’s art. A professional attacks another professional’s work with no reasons given?

Okusa is not alone. Magunga went on to write this after we spoke,

“…every time Raila has offered himself for an election a theme song has to be composed. I cannot remember who sang what in 2013. It was that obscure. In 2017, Onyi Jalamo just gave us this useless arraignment of verse with no meaning whatsoever; a 7-minute waste of time that merely rides on a catchword, TIBIM, invented by former SONU Chairman, Babu Owino. NASA (the song, not the coalition) is, at best, a pile of fermenting garbage. That NASA (the coalition, this time) even chose it to be a campaign anthem is a tragedy. That jingle is so bad it can cause brain decay.”

I wish to shed some light on the song in question and perhaps in so doing, offer Ouko, Magunga, and any others like them a chance to come to a different conclusion about the song. A small service in literature.

Jalamo is singing about what he perceives as the country finally agreeing to unite behind Raila’s presidency. This is precisely the same thematic content that Onyi Papa Jey had tackled with the more acclaimed ‘Raila Kar Chakne’ from the 2007/8 political season. The mood of the song is celebratory. For those who remember Gor Mahia’s unbeaten streak in 2013. And the hashtag #Giniwasekao (we have already taken this thing), Jalamo’s song is in the same vein. A pre-celebration/encouragement message. It is rooted in the Luo culture of ‘pakruok’ –praise giving- to celebrate and encourage heroes, leaders, teams(e.g. sports), and I am sure in the past, armies. It is a cultural song, in the ohangla genre.

‘Tibim’ is not a nonsense word. It has onomatopoetic meaning. It describes the sound of something being struck. A point hitting home. A final blow. It evokes the emotion of triumph after struggle. A striker might be described as hitting the winning shot ‘Tibim!’ and subsequently scoring. Dholuo has words like that. Words with onomatopoetic meaning and Jalamo uses several in this song. ‘Tialala’ might describe the sound of a veil being torn. ‘Riaaa’ is an exhortation. You may shout ‘Riaaa!’ to your hunting dog to encourage it to catch the game you hunt. The bulk of the song is made up of lyrics that name a politician and request the replies ‘tibim’ and ‘tialala’ from participants.

Raila tibim. Tibim!

Wetangula tibim. Tibim!

Obado tialala. Tialala!

Perhaps Ouko does not know but these words had already found use in the political process well before Onyi Jalamo borrowed them to use in his song. They were already being used in campaigns all across Nyanza in precisely the way that Onyi uses them in his song. I was home in Migori for the party nominations and Obado was ‘tibim’ in the red corner, Ochilo was ‘tialala’ in the other. The people Ouko Okusa observes dancing know precisely what the words mean, however repetitive and mundane they sound to him. Onyi Jalamo’s song is deeply relevant to its ohangla audience and that is a mark in favour of its quality.

We often criticize contemporary music based on perceived moral content. Jalamo does not moralise. He does not pontificate. He does not beg you to vote for NASA. He simply celebrates a victory that he wishes to sing into existence. His lyrics are clean. He points out a few of Raila’s finer points.

‘Amolo Odinga, gik ma itimo dongo. Ikelo Democracy.’

Amolo Odinga you do great things. You have brought democracy.

To those who may accuse him of buttering Jakom’s behind, I ask you, are the lyrics untrue? Does Jakom not count among his contributions the very recent and hard-won struggle for a new constitution? Is that not a great thing? And is Onyi Jalamo not entitled to his interpretation of events?

The women leaders of NASA are celebrated equally. He devotes an entire verse to their praise, some names he mentions repeatedly.

Gladys Wanga. Tibim!

Amilo Gesagesa. Tibim!

Again the song scores. In comparison to most recent local hits, even crossing over to the side of gospel, such recognition and praise of women leaders is without comparison.

The song makes a point to be ethnically inclusive, mentioning leaders from all the different parts of the country that NASA has secured alliances within. All the NASA principals are Tibim. Joho is Tibim. Muthama is Tibim. This too is a point in the song’s favour.

It is not a posh composition by any means. One can discern from the sound that it was not produced on a large budget, but it did not need to be. This limited budget is perhaps what Okusa is noticing with the quality of the video. In fact, I do not fault Onyi for the original video quality. I pointed out that Okusa was half right about that because the cameraperson took really bad shots. Onyi Papa Jey’s classic was not the best shot of videos either. These political hits never are when they first appear. They are spontaneous, reactionary, expressions of a groundswell of emotion. The emotion Okusa fails to observe in the dancing masses shaking to NASA.

It is not a perfect song either. Not all of Tibim’s lyrics are happy and celebratory. There is a line, casually dropped but ominous where Jalamo sings, ‘ma kata kochuno to wadonjo gi balangewa’ – If needs must, we will climb in through the rafters.

It is a veiled threat. If Okusa wants something to fault the song on, this is what I would submit as a fault. At the NASA rally on Saturday, this rhetoric was reiterated by incensed politicians on the podium in front of a mammoth crowd and international media. I disagree with this threatening rhetoric. I wished for Onyi Papa Jey’s classic with its more level-headed ‘Beduru mos’ message but unfortunately, this is not his season. A more mature artist, he was wise enough to warn of violence without threatening it.

In the meantime, Jalamo has realized the potential of his song and there is a new Tibim video out with slightly better production quality and more Swahili lyrics than the original. Jalamo wants more Kenyans listening. I would suggest that Ouko revisit this artist and both versions of this piece of art and do another news feature about it except this time, to treat them with the professional courtesy they deserve. NASA(Tibim!) is probably the most nationally significant piece of music that will be recorded in Kenya this year.

 

BINDU BICHENJAGA

Amos Barasa’s ‘Bindu Bichenjaga’ is a humble giant of a song. It is composed with traditional instruments and features Barasa plucking on a litungu as a talented orutu/wandindi offers counterpoint for the lyrics all through and his band backs him up. It is not a big budget production either, but the video is creative and ambitious.

In an interview on K24, he explains the lyrics a little and it is clear that he did not intend it as a NASA hit. Music is alive however and even though it bore a more general message at composition, its meaning has evolved and its key lyric ‘Bindu bichenjanga’ –things change- has found application on the campaign trail and resonated with NASA supporters from Western.

This political season, the Western alliance seemed to present the hardest challenge for Jakom to secure. Seasoned and advanced politicians had to be brought into the fold. It was hard fought but eventually, it was achieved. ‘Bindu Bichenjaga’ hints at the feelings among the electorate in Western that might have motivated the region’s heavyweights to lay aside their own ambitions and back Jakom.

At last Saturday’s rally at Uhuru Park, it was the second most popular tune blasting from the campaign trucks and vans after Tibim. In the video, Barasa seems to track the story of the country, pointing out different things that have changed over time and offering them as evidence that change is inevitable. This desire for change, if the song reflects it correctly, is what consolidated the Western region behind Jakom. ‘Bindu Bichenjanga’ is to the people of Western and NASA what Onyi Papa Jey’s song was to Jakom and Nyanza. In Magunga’s words, “…a soundtrack to the coming to life of a dream.” But whose dream?

 

WHOSE MUSIC, WHOSE DREAM?

Earlier, I had mentioned a disconnect between two types of voters and two types of musics that the campaign period reveals. I like to refer to these groups as ‘the ground’ and ‘the elite.’ It appears to me that these two groups are as distinctly separated as conflicting tribes. It seems to me that these groups have different musical cultures. ‘The ground’ is rooted in cultural musics, languages, and identities that are often missing from the national mediasphere before election time. ‘The elite’ value and seek national and international identification and acceptance and consume music in ‘national’ or foreign languages such as English. NASA leadership, if they had been given a choice, would not have picked Jalamo’s Tibim song or even Bindu Bichenjaga. They had repeatedly chosen Helena Ken’s ‘Mambo Yabadilika’ for official events and rallies. The NASA principals were announced to this song. A song in Swahili, a national language.  Ouko Okusah’s critique of Tibim’s quality is an elitist critique. The ground doesn’t care for video quality. They consume the music from the speakers of radios, whatsapp groups, and roadshow trucks. They choose songs that best represent the emotion they feel, and if that song is missing, they sing it.

Suzanna Owiyo composed her own NASA anthem, an attempt to achieve the same feat as Jalamo. She isn’t the only one. In the run-up to the vote, NASA anthems have proliferated online as musicians from all genres toss their hats into the ring. There is a Kamba NASA anthem, a ragga NASA anthem, a ghipuka NASA anthem, a Benga NASA anthem, a Kalenjin NASA anthem, and there will be more. None of them is produced with stellar quality, but all are popular and widely shared online. This art has not been solicited, it is happening on its own. These artists all see a ground ripe with listening fans and are eager to endear themselves by paying homage to the party. They are betting their futures on NASA and Jakom. Nothing like this is happening with music on the Jubilee side. This is significant.

It is also troubling. It hints at the lack of support and opportunities for independent artists in the country, especially those performing in local languages. It highlights the magnitude of the challenge that candidates who offer no cultural or populist affiliation face in the current political paradigm. And it also highlights a failure on the media’s part to adequately and consistently represent all in their coverage and programming. A debate about the place of local languages and cultural music in the national mediasphere is long overdue.

At Uhuru Park, everyone danced to these local language, cultural songs. Despite the differences in language, they seemed to be unifying factors, not divisive ones. Everyone shared the emotions these songs carry, in the hundreds of thousands. The feeling of being part of the same emotion with so many, it is powerful. It is powerful enough to sway votes and to change minds. Nothing is a better barometer of the sentiment on the ‘ground’ than the music that the ground is singing and dancing to. The IPSOS and SYNOVATE polls may have their numbers but in the musical polls, NASA is winning by a landslide. They say politics is fought and won at the grassroots, ‘the ground.’ I believe the musical polls are a far better barometer of the sentiment on the ground than any opinion poll. If you wish to know what the ground thinks of the presidential candidates as they head to the polls this week, just listen. You will hear Tibim! And Bindu bichenjaga.

Alexander Ikawah is a writer and filmmaker living and working in Nairobi. His work has been published in magazines Jalada, Kwani? and Lawino.

 

 

The #LipaKamaTender Movement

Guest Writer
21 February ,2017

by Dr. Judy Karagania

Kenyan doctors have been on strike since 5 December 2016. That is 79 days. This strike has historical parallels to what is considered the longest strike by medical practitioners in 1994 that lasted 105 days. Three thousand doctors were sacked fighting for the registration of the Kenya Medical Practitioners, Pharmacists and Dentists’ Union (KMPDU) and salary increases.[1]

In the last 2 years alone, there have been 42 strikes in various counties, following the hurried devolution of the health sector in January 2014. [2] However, this strike is different because we are fighting for the enactment of the Collective Bargaining Agreement (CBA) that was signed between the doctors and the government in June 2013, yet the government has delayed its registration and implementation for the last three and a half years.

The CBA captures issues varying from doctors’ remuneration, promotions, transfer and training of doctors; improved working conditions such as functioning medical equipment, increase of number of doctors and support staff; benefits to doctors such as ‘workmen compensation and retirement.’ In October 2016, following an 18 month case the doctors’ union had lodged against the government, the Labour court ordered for the registration of the CBA, but the Ministry of Health remains defiant. Our struggle takes place in a context where various government ministries have been mired in corruption scandals by paying for inflated tenders for services and commodities that are rarely delivered.[3] It is with this same speed that doctors want the CBA to be paid, hence the hash tag #lipakamatender which means “pay it like a government tender.”

“Daktari unahitajika ward.” The nurse sounds tired. She is overworked, being one of two nurses there caring for a ward with 80 patients. This is far from the WHO recommended nurse : patient ratio of 1:6/10. I find a patient convulsing, an empty emergency tray and the pharmacist informs me that we have been out of anti-convulsants for more than a month. The patient is dead when her kin returns with the drug from a private pharmacy in town.

For years, Kenyan doctors have been reduced to supervisors of patients’ deaths and we see this strike as the beginning of the path to redemption. One could easily trip over several patients lying on the floor because all the beds already are occupied by two patients. On display are archaic blood test machines and x-ray machines which haven’t been working for the last two weeks. The donated ambulance at the parking lot has also been out of service for the last 2 months. A mother mourns her deceased new-born because she went into obstructed labour at home, and the only means for her to get to the hospital, 60 km away, was on a bodaboda (motorcycle).

It is with an air of irony that doctors noted that the First Lady, Margaret Kenyatta, once again announced her annual Beyond Zero marathon which has been held for the last 3 years to raise funds to improve maternal and child health. Yet her husband heads a government that is constitutionally mandated to address this need and has failed to support its doctors. To add to the irony, the Ministry of Health, using taxpayers’ money, are also large donors to this private campaign. Due to the politicization of the agenda, the First Lady issued a statement cancelling this year’s marathon. The quest to have fully equipped hospitals is constantly hampered by ingrained corruption and government inefficiencies. For example, KES 30 Million worth of medical equipment was returned to its Swedish donors after the donor declined to pay out KES 2 million in kickbacks to have the consignment cleared at the port.[4]

At the beginning of the strike, the Cabinet Secretary of Health, the Deputy President and the President all insisted that there was no money with which to pay doctors. Yet the same government spends KES 16 billion in annual salaries for members of parliament and senators, who are the second highest paid lawmakers in the world after those in Nigeria. They receive 76 times of Kenya’s GDP per capita of KES 86,624[5], and a further KES 4 billion on their travel allowances. In 2015, the president’s travel cost the taxpayers a whopping KES 1.2 Billion.[6] Adding insult to injury, whilst doctors have been on strike Kenyan MPs have awarded themselves send-off packages worth KES 36 billion and are to receive KES 11 million as “gratuity.”

In light of all this extravagance, the doctors’ demands for the new pay structure will set back the government only KES 8.1 billion annually for 4,500 doctors in public service. Despite this, the government in the last 11 weeks,has undermined the CBA and repeatedly offered a 40% increase in the emergency call allowance and a “presidential gift” of KES 10,000 as a risk allowance. This is very different from what was painstakingly agreed upon in the CBA that involves special banding of doctors’ remuneration, because of the unique nature of our work as civil servants, working odd hours and repeatedly endangering our own health and lives. Furthermore, there is the ongoing suspended prison sentence for the top seven union officials, which has been used to blackmail them to call off the strike.

The integrity with which the government has handled negotiations with doctors has also been called into question. The Telegraph India reported that the Indian government through their Prime Minister Narendra Modi had “sidestepped” a proposal from Kenya to fly doctors from India to fill the gap created by the strike during a state visit to India by Kenya’s president, Uhuru Kenyatta. The other proposed source of doctors was Cuba, who have remained silent on the issue. Even though the government has denied these claims, we question the seriousness and commitment that they bring to negotiating with doctors.

The Minister of Finance recently admitted that the reason why they do not want to pay doctors a decent salary in the public sector is because this would cause an influx of doctors from the private to the public sector, hence private hospitals would collapse. With more than 95% of Kenyans relying on public facilities, it should go without saying that health is a public function. From the approximately KES 50 billion our National Health Insurance Fund (NHIF) receives, KES 33 billion goes to private hospitals, KES 10 billion goes to India for treatment of Kenyans there and only KES 7 billion goes to public hospitals, of which only KES 4.2 billion goes towards free maternity care.[7]

Government interests are clearly skewed away from catering to the public’s needs. On the other hand, private hospitals are known to exploit doctors, paying them as little as KES 55,000 a month. While the public provision of health services is thus undermined, international investment companies are flocking in, seeking to invest in private healthcare in Kenya, because it is a “honey pot” for a rising middle class. Our very own private facilities are also investing billions of shillings in expansions. Does this mean that access to healthcare will become a privilege and not a right?

The vultures are circling around the carcass that is public health care, but doctors shall continue fighting for the ordinary citizen to have access to the best attainable health in this country.

Dr. Judy Karagania is a Kenyan medical doctor currently working in the largest referral hospital in the region, Kenyatta National Hospital, while pursuing her postgraduate studies in Ophthalmology. She obtained her medical degree from the University of Nairobi and afterwards went straight into the public health service at the second largest referral hospital in Kenya, Moi Teaching and Referral Hospital, in Eldoret, then later worked at a smaller hospital in Naivasha.

Ed: A version of this essay was initially published on Review of African Political Economy.

References

[1] The Star, 8 December, 2016, Kenyan Doctors’ Fight for Better Pay started in 1994. Doctors were deemed un-unionisable then because the law categorized them as being in managerial positions. The Union was only registered in 2011

[2] Section 138 of the County Government act and part 187 of the Kenyan constitution. The transition authority had advised that devolution of Health should be done slowly, but it was very quickly executed.

[3] Two recent examples of major tender issuance corruption scandals in Kenya in 2016 alone can be read at: The Daily Nation, 27 October, 2016, Questions raised as Kshs 5 Billion missing at Health Ministry; AllAfricanews.com, 30 September, 2016, Kenya: Sh1.8bn Lost in NYS Scam, Lawmakers Told

[4] The Daily Nation, July 9, 2016, Donor takes back Sh30m equipment after refusing to give out kickbacks

[5] Business Daily, July 23, 2013. Kenyan Legislators emerge second in global pay ranking.

[6] Business Daily, Oct 12, 2015. Uhuru foreign country visits cost taxpayers Sh1.2bn

[7] KMPDU Secretary General’s Speech January 31, 2017