Towards Realising Affordable Housing in Kenya

Guest Writer
30 October ,2018

by Mukami Githagui

Housing is a fundamental human need. With the rising cost of inflation and other economic drivers making life very expensive, President Uhuru’s focus in affordable housing is a much welcome reprieve. In 2017 the President launched “The Big Four” agenda for economic development in Kenya, focusing onfood and nutrition security, manufacturing, affordable healthcare and affordable housing as his blueprint not only to deliver a legacy government, but also to bring long-term meaningful change to Kenyans.

The government plans to deliver 1 million housing units over the next five years. The president’s ambitious housing plan aims for at least half a million more Kenyans to own homes by the end of his second term. In Nairobi for instance among the areas to be covered include Park Road, Shauri Moyo, Bachelors’ Quarters, Suna Road/Toi Market, Pangani and Mukuru Kwa Njenga. It has also been reported that at least 36 governors have signed agreements with the national government to extend the project to their regions. Can this dream become a reality or is it going to become yet another white elephant?

According to the National Affordable Housing Summit Group of Australia, affordable housing is housing that is reasonably adequate in standard and location for lower or middle-income households and does not cost so much that a household is unlikely to meet other basic needs on a sustainable basis.

The National Housing Corporation, puts the housing deficit at 2 million units cumulatively and it’s growing by 200,000 units per year. With a rapid population growth of 2.6% per annum and the rate of urbanization standing at 4.4% it presents a dire situation. For context, the global average is 1.2% for population growth and 2.1% for urbanization respectively. The supply of housing in Kenya is constrained and the Ministry of Transport, Infrastructure, Housing and Urban Development estimates the total annual supply to be at 50,000 units.

To further underscore the need for affordable housing, the ministry indicates that 83% of the existing housing supply is for the high income and upper-middle-income segments, with only 15% for the lower-middle and 2% for the low-income population. In summary, while 74.4% of Kenya’s working population requires affordable housing, only 17% of housing supply goes into serving this low to lower-middle income segment.

Long story short, it’s not good. But what’s going wrong?

According to a Cytonn Investments report there is an inadequate supply of serviced land at affordable prices due to soaring land prices in urban areas. In Nairobi, for example, land prices have been growing at a 6-year compound annual growth rate of 17.4%. This has led to increased development costs as land costs account for 25% – 40% of development costs in urban areas, which consequently impacts on end-user prices. Even in most of the areas earmarked for this housing land prices are steep, which again begs question.

The report also cites costs of construction. Mid-level construction costs in Kenya range from Ksh44,000 – Ksh64,000 per square metre depending on the level of finishes, height and other related factors, and account for 50% – 70% of development costs.

According to Hass Consult Ltd, in Q3 of 2017 the prices of housing dropped by 5.1% due to the political instability we faced last year. However, the average value of a residential property in the country surged to KES 29.8M in September last year. The same report cites that property purchases in Kenya are purchased cash, mainly because the mortgage industry remains underdeveloped.

What solutions are available?

The government, the Capital Markets Authority, NSSF, Retirement Benefits Authority, Kenya Revenue Authority, private sector finance and development, all have a role to play and the specific solutions need to be wider.

Given the need for funding businesses in a growing economy where SMEs create majority of jobs, private markets such as structured products offer a compelling alternative for developers to seek financing.

Strong government support and strict housing policies are also necessary in order to boost home-ownership. It is necessary to set up and adhere to strict rules and eligibility measures for house-purchase such as minimum occupancy periods and housing to income ceilings, so as to restrict to prospective home-owners only as opposed to speculative buyers.

There’s need for efficient planning to allow the best use of land in a sustainable manner to cater for the growing population with key considerations on the provision of services such as water, power, garbage and sewage disposal. Hand in hand with this is exploring cheaper building technology to lower construction costs. Training of labour on the use of alternative building technology is essential so as to boost its application.

An article in Nairobi Business Monthly, argues that the construction industry needs to embrace technological changes that will result in a mind-shift on the use of innovative products and services whose aggregate effect would be to lower the average cost of building. Despite the emergence of innovative construction materials, building a house in Kenya is still costly.

In Nairobi where land prices have sky-rocketed significantly, we need to make use of land in the neighbouring areas outside the metro region such as; Kitengela, Ruiru, Ngong, Kiserian, among others to put up low-cost houses.

An efficient mass transport system linking the above areas to the city’s central business district will incentivise private sector investments in the greater metro region. Ethiopia is a perfect example where they have built a light rail system that connects Addis Ababa to the neighbouring towns where low-cost houses have been built. Due to the efficient mass transport system, Ethiopians are able to work in cities and towns but put-up kilometers away.

Given the rising cost of land, the cost of construction materials, taxation on these materials and of course corruption which sees title deeds irregularly issued, buildings constructed on riparian land and other irregularities, becoming a property owner is not a walk in the park. Only time will tell whether the government’s ambitious project is feasible or not.

Mukami Githagui is a freelance writer based in Nairobi. Mukami has covered business and written features for two of Kenya’s leading media companies, the Standard Group and Nation Media Group.

Rafiki – A Kenyan Love Story

Guest Writer
2 October ,2018

by Sheena M

I arrived about 20 minutes early, and already there was a large gathering waiting to see Rafiki. The moment I walked into the waiting area at Prestige Plaza cinemas, I felt the stares. We were all sizing each other up. Who are you? Do I know you? Are you a threat? Do I have to be concerned about your presence?

It was all nerves, muscles tensed and ready to spring into action. It was like we were all doing something we knew our parents would not approve of. This feeling wasn’t unfounded. I mean, you only need to look at Ezekiel Mutua’s tweets about this movie to how bad it is. So being at the cinema waiting to watch a movie about two Kenyan girls falling in love felt like a risk in itself, whatever your sexual orientation.

The movie’s director Wanuri Kahiu has already given various statements in the media about why she chose to go ahead with Rafiki, despite it not being welcome in its own home. She insisted that she wanted to make a love story and “contribute to that language of softness.” I can confidently say that Wanuri accomplished that desire.

Rafiki is the first Kenyan feature film to be screened at a Cannes Film Festival –it was filmed earlier last year. To have a Kenyan film, about Kenyans, made by Kenyans, showcased at the largest international showcase of cinematic art is a feat to be celebrated. Wanuri is no stranger to the movie scene. Her first feature film, From a Whisper, won awards at the Pan African Film Festival and the African Movie Academy Awards. While that movie was based on the events of the 1998 bombings on the US Embassy in Nairobi, Rafiki’s inspiration was drawn from the 2007 Caine Prize Winning Short Story “Jambula Tree” by Ugandan author Monica Arac de Nyeko.

Watching Rafiki was a reminder that we are really all the same. The 83-minute film was so captivating that I did not want it to end.

The Plot

Set in a fictional place called Slopes in Kenya, Rafiki tells the story of Kena (played by Samantha Mugatsia), a young tomboy living a regular Kenyan life. As we watch Kena skating along and meeting up with her male friends, it’s clear that she’s been accepted as ‘one of the guys’, even though one of the guys calls her ‘his number one girl’. When Kena’s not hanging out with Blacksta, she’s helping her dad run his shop or making sure her mom’s fed – a good Kenyan girl doing the good Kenyan girl thing.

Then one day, Kena notices a girl noticing her. This girl is obviously different – you can tell from her long, multi-coloured braids and the makeup. Even though this girl is the daughter of Kena’s father’s political opponent, Kena can’t help but be drawn to her. A friendship quickly blossoms between Kena and Ziki (played by Sheila Munyiva) and just as quickly grows into something more.

“The courage that you have when you’re in love is really what I hope resonates.”

~ Wanuri Kahiu

The opening scene of Rafiki is like an ode to all things Kenyan. Kiosks, campaign posters stuck on walls and the noa noa guy sharpening knives at the corner all blend together to paint the picture of a local Kenyan neighbourhood. As soon as the movie started, whatever tension we all had within us began to dissipate. Watching such familiar scenes drew us into a sense of comfort, a feeling of being home, even before we heard anyone speak onscreen.

As an audience, that bound us instantly. Kena may as well have been one of us – going to church with her mother every Sunday, hanging out with her boys at the local spot, eating chapo dondo. It only made the tender moments more tender and the harsh ones more painful, more alive, more real. We laughed as one at the funny parts, held our breaths when we didn’t know what was coming, gasped at the moments that shocked us and cried silently as we watched Kena and Ziki struggle to stay true to themselves.

The music was on point as well. From Kena skating along to the gentle moments between Kena and Ziki, the songs that played throughout the movie matched the mood perfectly.  It was no surprise that the artists featured include some of Kenya’s most dynamic musicians. Muthoni the Drummer Queen, Blinky Bill, Mayonde, Chemutai Sage, Mumbi Kasumba, Njoki Karu, Trina Mungai and Jaaz Odongo all lent their musical prowess to the magic of Rafiki.

Wanuri’s directing shines brightest in the use of vivid close ups shots and nothing but facial expressions, showing us a lot of what is said through the unsaid, the sneer, the turn of the check, looking away and so forth. The first time Kena and Ziki share an intense staredown, it lasts long enough to undeniably feel the emotion behind it. It also lasts long enough to deliberately make us uncomfortable.

Not for any other reason other than the guilt of intruding on a moment of intimacy.

The movie tells the story of how Kena and Ziki find love and then face opposition from their family and friends because of it. Wanuri’s creative storytelling and the actors’ in-depth portrayal of their characters pull us in.  The mirror image given by Rafiki is such an accurate reflection of our society that it’s impossible not to be moved.

All things 254

The hairstyles, the clothes, the buildings, the boda boda guy with his pimped out ride and even the local neighbourhood gossip were all familiar to anyone who’s lived in Kenya. Seeing all of them in cinema in a high-quality movie was surreal. It made everything seem possible. And the dialogue was so typically Kenyan we couldn’t help but relate. If anything it’s the way we say things that made many of us laugh out loud. Like Ziki saying, “A nurse? You? Why?”

Wanuri was right.

We don’t get to see as many moments of tenderness in cinema as exist in real life. Rafiki removed the veil from things we normally distance from ourselves. It helped us see that we are just as capable of love as we are of everything that is not.

And that is what makes Rafiki a powerful movie.

 

Sheena M is in love with words and how they shape themselves. That’s why she keeps a blog that’s not as ‘organised’ as most. To see her musings, check out her blog What She Thinks

When survival is the only option

Guest Writer
18 September ,2018

Ed’s note: On the eve of publishing this piece the governor of Nairobi found 12 bodies of infants hidden in boxes in Pumwani hospital. 

Rationally, I think it’s more profitable for this country if I stay breathing. I was – until recently – gainfully employed. A large chunk of that salary went to various government bodies. I file my tax returns on time. I am, by most accounts, good for the economy. If asked on a date and/or job interview, I would say I’m also a good citizen: I read the papers and watch news; I reflect on national politics/gossip, and often argue about it.

And yet, all this considered, I have a sneaking suspicion that Kenya is trying to kill me off.

Certainly, living in Kenya today has its inherent risks: you could die in the hundreds of accidents that happen monthly; your kiosk could be demolished and your entire family uprooted; you could be robbed and killed; you could die in some natural and/or manmade tragedy like your apartment building could collapse with you and your entire family inside, and so on. Let’s think of these as congenital Kenyan problems; if you are born here, perhaps there are some ground assumptions you must* eventually accept.

These congenital dangers are not what I’m talking about right now. I’m talking about what happens when a good samaritan pulls you from the wreckage and rushes you to the nearest hospital. Or when your children are get cholera and you take them to the local clinic. I’m talking about what happens when your wife goes into labour a month before your loan comes through, when your sister has a mental breakdown and must be committed. I’m talking about what happens when you start coughing up blood and need to see a specialist.

Let me explain.

Our national health policy is straightforward: don’t be sick.There is no gesture more characteristic of our medical infrastructure than a silent shrug. Raced over here at 3am with a sick baby but don’t have cash? Shrug. Performed major surgery on the wrong patient, or neglected them? Shrug. Have to travel across the country from your village to access one of the three specialists in Nairobi? Shrug. Raped women who just gave birth in a national medical institution? Shrug. Can’t bury your family until you clear the enormous medical bills? Shrug. Require access to medication or equipment not available in-country? Shrug. Seriously injured in an accident but medical staff on strike? (your guess)

For all the people who have been advocating for better healthcare for decades, this is old news. In fact, it’s in line with what appears to be our broader national ethos: don’t be poor. The difference between our congenital Kenyan problems and the growing urgency of our (lack of) medical infrastructure may not be too large. Both are engineered and sustained for profit. Both are wide-ranging and seemingly intractable. But I do sense a difference, minor perhaps, but enraging. While both problems are stealing Kenyan lives, the health crisis disgusts me primarily because it strikes me as so profoundly preventable as to be malicious. If I survive a car crash only to die in a queue at a referral hospital, hiyo ni uchokozi. If a nurse gives me the wrong name tag and I don’t receive appropriate care, hiyo ni uchokozi. When a pregnant woman dies giving birth in a rural clinic because there was no ultrasound machine, that is preventable.

Here’s what we know: we don’t have even a third of the required number of medical specialists in the country. The current staff are underpaid and overworked. Those in public hospitals, in particular, are decamping at an alarming rate. All the same, the future workforce – medical graduates – are not finding placements. Of those being placed, the distribution across the counties is uneven despite decentralization; over half of medical specialists are in Nairobi alone. Only a quarter of  all Kenyans are covered by health insurance. The National Health Insurance Fund (NHIF) recently downgraded its cover to a maximum of four hospital visits per family for an entire calendar year. In the region, Kenya spends a comparatively small fraction of its GDP (~6%) on healthcare. The entire sector is rapidly becoming privatized, with marked government support for foreign investment. All this is to say: we are nowhere close to achieving universal healthcare. Yes, several other countries are in a similar position. However, given our current resources, and varied happy coincidences of history, our failure is not justified.

But remember, don’t get sick. If you are a patriotic Kenyan, you’ll get malaria, or a bad sore throat. You’ll go to a chemist, pick up coartem or strepsils and be on your way. If you are a rebel, you will break your arm, or contract an STI. You’ll go to a clinic near you, wait, pay, see a GP, get a quick diagnosis, pay again for the medication, and be on your way. If you are at my point or higher then you make it to enemy of the state, and you’ll do something our government seems unwilling to consider but happy to profit from: you will acquire a chronic and/or severe illness.

I used to consider myself lucky. When I first fell ill, I was a consultant and could thankfully afford my own health insurance. In the time I began to worsen, I had shifted to work that provided me with medical cover. Throughout this time, I was still paying monthly for NHIF. Over the past two years, I have been foisted from one doctor to another, crawled from one hospital to another, first trying to get clear diagnoses, and then to find effective treatments, and compassionate care. I’ll spare you the horror of the inbetween. From January to July this year, I accessed over half a million shillings’ worth of healthcare. This does not include the ‘experimental’ or ‘unconventional’ treatments I tried, like additional physiotherapy and testing, that I had to pay for out of pocket.

I have stopped calling myself lucky because I was employed, had insurance, got diagnosed relatively faster than others, received passable care, and responded well to the treatments. Luck should not have to factor here. Let’s go back to the quick maths I started with. Maybe my frame is too narrow. Taxes on my income, and each of my individual purchases may not be enough to earn my keep as a Kenyan citizen. Maybe I’m worth more sick; my being constantly unwell certainly profits a few big clusters: pharmaceutical companies, private hospitals, government official and unofficial coffers. Don’t be sick.

If this country isn’t deliberately trying to kill me, it is, at the very least, not actively trying to keep me alive and healthy. Something has to give. We will continue to be frail humans and if the government insists on not only ignoring but profiting from this fact, then we are playing a fatal game of chicken; whoever blinks first loses. If you don’t get sick, you win. If you don’t get in an accident, you win. If no one in your circle gets ill or injured, you win. Lucky or not, those odds are tough to beat – and no one wins.  I did not.

Alexis Teyie is a writer and editor at Enkare Review

Kenya’s Media Problem

Guest Writer
14 August ,2018

by Robert Munuku

When I turn on the television, I am not sure whether I am watching the news or a travesty of the same in the name of a glorified show of beautiful men and women dressed up in dashing tunics and layers of make-up smiling before our screens telling us what we should care about. I fear for journalism in this country, and flinch at the thought that the deterioration of one of society’s key institutions will be to our detriment.

Mainstream media in Kenya is far from politically neutral and this in itself is enough stir concern. A quick recap at the major mainstream media houses in our country: The Nation Media Group (which owns The Nation and NTV, Mediamax Limited (which owns K24), Royal Media Services (which owns Citizen TV and Radio, among other radio stations), the Standard Media Group (which owns The Standard and KTN), and Kenya Broadcasting Corporation (KBC).  I am intrigued by the ownership of these media houses, their board constitutions and their implied affiliations.

The Nation Media Group (NMG) is owned by the Aga Khan Foundation, founded in 1959 by his Highness the Aga Khan. At face-value this seems okay, after all, the foundation is more or less an autonomous entity. But when we take a look at the board members of NMG we see some familiar faces; allow me to pick one – Professor Olive Mugenda. Prof. Mugenda served as the Vice Chancellor of Kenyatta University (a public university) and was later appointed by the current President, Uhuru Kenyatta, early this year to the Judicial Service Commission (JSC). This may not mean anything and one could say she was vetted and therefore qualifies for the job. However it is often the case that such nominations are done based on trust and a history of loyalty.

The Kenya Television Network (KTN) was founded by Jared Kangwana, a close ally of retired President Daniel Toroitich arap Moi for years. This affiliation was accentuated in a land donnybrook four years ago where Kangwana stated that the former President had allocated the land to him.  Going by the former President’s endorsement of our current President in 1997 as KANU’s (Kenya National Union party) presidential flag-bearer, it would not be a far-fetched assumption that KTN and its mother company, Standard Media Group, leans more towards government. The former Kenya Wildlife Services (KWS) parastatal boss, Dr. Julius Kipng’etich, also sits as a board member of the Standard Media Group.

K24 TV is owned by the Kenyatta family to the best of the public’s knowledge; no need to say where their loyalties lie. The same goes for the Kenya Broadcasting Corporation (KBC) which is not only the pioneer media house in the country, but also a parastatal run by the government. We are left with one more mainstream media house to look to for authentic unbiased journalism – Royal Media Services or, if you prefer, Citizen TV.

In the 2013 general elections in Kenya, the owner of Royal Media Services, Samuel Kamau Macharia (popularly known S.K. Macharia), was seen standing next to the former Prime Minister, Raila Odinga, in a press conference at which the election results were being contested. Moments after the famous press briefing, several articles arose from independent media houses claiming that he was in fact using his media house, Royal Media Services, to support the former Prime Minister’s election bid.

Fast-forward to 2018, Royal Media Services conducted what is arguably the largest poaching drive in the industry’s history, literally milking-dry all their competitors, especially KTN and NTV (Nation TV of Nation Media Group).  Among those poached were KTN former Managing Editor, Joe Ageyo, whose new role is not clear yet given we have seen him intermittently reporting features for Citizen. Joe Ageyo was also one of the 2 journalists who moderated the 2017 Presidential Debate alongside the then Nation T.V. Managing Editor, Linus Kaikai. It is worth noting too that Asha Mwilu, an award-winning journalist who worked closely with Joe during his stint as Managing Editor at KTN, was poached together with him to join Royal Media Services. Another personality to note among the poached is Yvonne Okwara-Matole, from KTN. Like Joe Ageyo, she too was a moderator for the running-mates’ debate in the 2017 general elections.

Linus Kaikai, Larry Madowo and Ken Mijungu were summoned to the Criminal Investigations Department (CID) headquarters for allegedly refusing to comply with a directive regarding the airing of the former Prime Minister’s ‘swearing-in’ ceremony. One month later, Larry Madowo resigned from his post at the Nation Media Group. Linus Kaikai, who was accosted with him, also resigned shortly after the summons to CID headquarters. He later moved to Royal Media Services.

It is said that “grand alliances between two great powers are generally the least effective.” Could this apply to the infamous ‘handshake’ between our President and former Prime Minister? Would it be so absurd to entertain the possibility that the shake-up in the media is connected to this?

When I turn on the news, all I see is tragedy; rape at Moi Girls Secondary School, the recent demolitions by NEMA, hordes of corruption cases from that of the National Youth Service (NYS) to the more recent of supposed misuse of office by the former governor of Nairobi. I know when a dog bites a man it is no news and ‘news’ would only constitute the opposite, but have we taken ‘bad news’ too far? Has our news been reduced to insensitive sensationalism of even the most tragic moments of our times? Do journalists care about telling the truth – about sharing honest stories from the same masses that the media fraternity serves, or is winning an award for a story more important for them?

Has mainstream journalism in our country been co-opted by the political elite?

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

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.