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

Voice of Kenya(tta)

Michael Onsando
29 March ,2016

“If this can happen to GADO, who can’t they go after?”

I’m worried. So we’re going to talk about media freedom again. Now, I understand that, given digital media and the many changing ways news travels it is harder to keep track of what is true or false; what works and what doesn’t. But it is of a worrying level of concern just how good this current government has become at silencing dissent before it has had a chance to voice itself. More worrying is the subtlety with which this is happening. It’s like they have become adept at catching things before they make a ripple.

Or perhaps, controlling any ways in which ripples are formed.

Since the British East African Broadcasting Corporation began in 1929 there have been many, often successful, attempts to control the media. By the time the first president Kenyatta was going into power he quickly nationalized the media. In doing this he ensured he could control what went into and, more importantly, out of the Voice of Kenya. Symbolically he basically controlled the voice of the country. Moi was not much better. Under the 24 years of his rule saw a large number of human rights abuses of which banning critical media was a large part. I use these two examples to explain that, given their influences, I’m very wary that the jubilee government and, particularly, the president, is capable of imagining a different way to approach the media.

And with each happening my concern grows.

Take GADO as an example. After working for 23 years with the nation his contract was cancelled after a ominous “they” reached a decision.  Dennis Galava, fired from the nation for writing this editorial, wrote an affidavit outlining how it happened. The affidavit itself reads like something from a novel where the protagonist was doomed from the outset. Formal procedures became cover ups for what was really happening. A section of particular interest reads:

“my questions were not taken well. A panelist offered that he would be more cautious if he were in my shoes. Here I stood, he added, both having upset Kenya’s president and the Aga Khan, and risked the business of the paper and yet I also stood seeking justification rather than groveling for mercy.”

(full affidavit here)

Take note of the language here. The problem shifted from whether or not the article itself was factual or, misrepresented any facts in anyway and became who the article had offended. In offending these people Galava had done something seen as unjustifiable. Worthy of his sacking.

Even as I use offend here I use it with a questions Teju Cole asks:

“..as a writer, I cherish the right to offend, and I support that right in other writers—but what was being excluded in this framing?”

Which is to say I understand that even this freedom to offend exists within certain limitations and ethical boundaries, and I’m  still puzzled as to what ethical boundaries were crossed in the editorial. And how badly they must have been crossed for Galava to have just been fired.

And it’s not just mainstream media that has been affected.

Misusing a licenced communication gadget (Section 29 of the Information and communications act) has been used to track bloggers in Kenya since its inception. Of recent interest is Yassin Juma, who was arrested for sharing pictures of KDF soldiers on his blog. Or maybe Nancy Mbindalah who, in 2014, was arrested for writing that a hospital had been disconnected from a water supply, only to be saved by resident’s pleas. Many more exist in this category and have been analysed by Brenda Wambui a year ago here.

But one of the most frustrating parts of all this is when we, who should see what is being done, continue to side with those perpetuating this same thinking. As Macharia Gaitho puts it:

“Neither President Kenyatta and Deputy President William Ruto, nor Cord leaders Odinga, Kalonzo Musyoka, and Moses Wetang’ula are national leaders and patriots. They are simply leaders of ethnic political formations who thrive on mobilising their communities and groupings against others.

They play up the ethnically divisive “tyranny of numbers” and “41 versus 1” stratagems and thereby prime their supporters to hate and demonise other Kenyans as enemies to be isolated and neutralised. Now, when somebody points out the dangers we face approaching the elections under such a dangerous culture, some idiots call for his arrest.”

 

In this article he was talking about the hashtag #ArrestNdii. This hashtag caught me by surprise in many ways. Surely, given how the state is treating the media, citizens were not also trying to destroy the few dissenting voices left? The only real comfort in this thought is knowing that twitter is not the country, neither is it representative of as large a demographic as we’d like it to be. Still, it is growing and that there is already a lot of control happening there (don’t even get me started on Itumbi and the rest) is bothering.

But none of this is new right? And, since it has been going on since 1929, it shouldbe more important to see how well we’ve done since then. Save for changing the faces, we haven’t. Kenya has dropped from being 75th in 2002 to 100th in 2015 in press freedom. A trend that seems set to continue this year. Uganda, who we were all criticizing for how they handled their recent elections, lies at 97th. Further, anti-media legislation has shown up severally under this regime with a lot passing through the media bill and the most recent attempt stopped by National Assembly Speaker Justin Muturi.

So yes, I’m worried. I’m worried that, as Nanjala Nyabola puts it:

“There are many people in this country who don’t understand how important journalism is and the impact that it has on how we see ourselves as a nation and what prospects we imagine are possible for us in the future… what are the threats to journalism today? I think that’s the first one that many people a) don’t see the importance of journalism and b) aren’t scared when they see the threat.”

And, even with all this data available we still claim that the media is independent. Is it really that we aren’t scared, or that we don’t know how to stop it? I don’t know, but I know that I’m worried. And with each happening my concern grows.

Kenya At 52

Brenda Wambui
15 December ,2015

On Saturday, 12th December 2015, Kenya celebrated 52 years of being a republic. We had our usual annual celebration where Uhuru Kenyatta addressed the nation and expressed a sense of optimism that is becoming more and more scarce as we continue to awaken to just how badly we are doing as a nation – socially, politically and economically.

He cited many triumphs, remembering the forefathers who build our nation, and the youth who have since inherited said nation. Except that most of the people who fought for our freedom (that are still alive) live in poverty, and the Kenyan youth aged 15 – 34, who make up 35% of the population, have an unemployment rate of 67%. The troops he celebrates for their bravery and integrity, and their work in the “liberation” of Somalia from terrorism are often accused of profiting from the same illegal trade deals that also financially support Al Shabaab. These are the same troops that were accused of looting Westgate Mall in the aftermath of a terrorist attack.

He named our athletes and innovators as shining examples of our excellence, forgetting that these athletes are robbed of their potential glory by sports officials in acts that his government conveniently ignores, and that we are becoming mired with failed doping tests which his government is just beginning to take seriously. The innovators he hails for developing new technologies and business models are still crippled by poor financial policy such as the VAT Act 2013 and lofty assumptions in the 2015/16 budget that may not become a reality.

National income per head is said to have grown to more than 13 times what it was fifty years ago, yet inflation has outpaced it at 7.32% by November 2015, yet 50 years ago it was – 0.10%. Hardly comparable. He hailed us as one of Africa’s most attractive investment destinations, something some scholars have disputed with good reason. In 50 years, our life expectancy has only increased by 12 years, compared to countries like India and Ethiopia, whose life expectancies have increased by almost double that figure (23 years).

He went on to speak about how we have made strides in education. Quantitatively, this is true: almost 10 million children are enrolled in primary school, we have more than 7,000 secondary schools now as compared to 151 in 1963, and we have more than 60 universities now as compared to zero in 1964, according to his speech. However, what is the quality of this education? We have written about this before on this site.

While Uhuru Kenyatta did apologize for the wrongs committed against each other on behalf of the Kenyan government in his State of The Nation address earlier in the year, to dismiss the pain and anger that many Kenyans feel and urge us to look forward is to be asleep to how much we have suffered, and what we are feeling. Indeed, one only needed to watch the TJRC proceedings to witness this pain, and realize that there is a case for reparations in Kenya, and that they are more urgent than we think. He apologized so that we could “accept and move on.” If only it were that simple.

He claimed that his administration was implementing the constitution quickly and decisively, yet he and his government have severally flouted the same constitution. The one thing we cannot argue with is the rate at which electricity connections have increased, from 28% to more than 50% in three years, with primary schools being the main target. We have also added 280 MW of geothermal power to the national grid. He spoke of the contentious Standard Gauge Railway being 60% complete as an achievement for Kenya, despite there being good arguments for the inefficiency and marginal utility of this railway.

Uhuru mentioned the benefits of devolution, such as the 24 hour economy in Kisii after the installation of 300 solar lights, the feeding programme for children up to Standard Three in Mombasa, the first C-section in Mandera, and the opening of the first medical training college by a county government in Kapenguria, West Pokot. I found this interesting, because his government has been accused of undermining devolution often.

In his spirit of “accepting and moving on” he mentioned that Garissa University would be reopened soon, never mind that not enough has been done by the President and his government to help the nation move on from the pain caused by that attack. He made promises to do all that is within his power to protect us and defeat the enemy, but given that he is one to always have the right response but not act in the right way, I am not quick to feel safe.

Perhaps the saddest yet most laughable part of the speech was when he spoke of corruption, a monster we seem unable to defeat in Kenya. He was right in saying that corruption is corrosive; that it brings with it destructive ethnic politics that associate public office with accumulation of wealth; that corruption kills. However, that is where we part ways. He declared a national campaign against corruption, and the whole time I asked myself, “how sir, when the culprits play right under your nose? Do you mean to tell us you cannot see them?” I feel we are being taken for yet another ride.

To attempt to list all the corruption scandals that have occurred since he took office in 2013 is to seek exhaustion – the poor state of our nation is known by heart by almost every Kenyans except those who are cushioned by their wealth – many of whom have acquired it illegally. He claimed that KES 2.24 billion of corruptly acquired money and property had been frozen or recovered. This sounds encouraging until you realize that Kenya cannot account for KES 450 billion (a quarter) of its 2014/15 budget. He stated that 337 corruption related cases were in court, and that 68 of those involved powerful people, but which powerful Kenyan has ever gone to jail for corruption, even within his term so far?

He claimed to believe in media freedom, yet as we remember, he is the same one who said that newspapers are good for wrapping meat. He attempted to play victim to the media, claiming that lies and sensation for the sake of sales hurt our economy, our cohesion, and our nation’s name. No sir, bad governance is killing our country. Lack of leadership is killing our country. Corruption is killing our country. Tribalism is killing our country. Most of all, poverty is killing our country. Work on fixing them as opposed to embellishing the state of Kenya.

Say you saw a painting…

Michael Onsando
24 February ,2015

“support local artists”

– Anything, anyone, anywhere

I remember writing an essay about my experience around the bomb blast in 1998. My teacher then, Mrs Dhanji, made a comment to my mother about my writing.

“It’s vivid.”

I’m not sure if either my mother or my teacher remember this moment. I do. I remember it now with a sharper clarity than ever because I’ve been asked, often, “when did you first decide to be a writer?” and, even more, “how does this make you money?”  It is questions like this that lead me to pry into my history.  That make me go as far back as I can to find traces of a form of writing. That make me remember that essay about driving down Haile Selasie avenue as the office where my dad was meant to be working blew up.

Lately I’ve been wondering about such questions. The questions that come from a place of “innocence” or “curiosity” and the work that they do. “How do you make money?” while, speaking about the societal problem of the arts being a place of struggle, also speaks to a personal devaluation of art. Even within our own minds we can’t imagine that somehow art can keep us alive. That life can be lived through art and, when confronted by this reality, we are in shock and awe.

Which is probably why this whole support local artists phenomenon bothers me.

I understand, and am fully in support of the shift to consume local art. A few weeks ago a friend and I were in a debate on twitter about why we don’t read white authors anymore. Even then we insisted on the need to diversify the kinds of art we consume. We need to listen to and celebrate our own.

 We need to recognize our artistry.

 And the first step in this is recognizing that art is work. That the work of creating, imagining, arranging, touring, writing, building, speaking, singing, dancing, sculpting, drawing, thinking and thinking is work. There are many many forums dedicated to crafts of various kinds but do we really critique each other in these groups, or do we support local artists?

Supporting local artists is buying a book and never looking at it. Supporting local artists is buying that CD off the streets because the guy looked like he could use a quick buck. Supporting local artists is knowing of the existence of Kuona trust, and attending cocktails there but not knowing a single visual artist. Or the message they are trying to send.

I’m tired of local artists being supported.

It’s time we engaged. It’s time we listened to Dela when she sings “I wanna live, I wanna live, I wanna live.” It’s time we see what Jackie Kiruti is talking about the monotony of day to day life. When she talks about repetition and reiteration. You see Michael Soi paintings all over town, but have you even looked at one? Have you questioned it? You love Okwiri but did you even read my father’s head?

I’m asking this because we engage with other people’s work, often, which is okay. I’m trying to demand that we give our own work the same attention.

Even in spaces designed to engage we find ourselves telling each other how great our work is. As opposed to creating circles of growth we are creating bubbles of affirmation. We have kept the people who will affirm us in and anyone who offers any kind of critique is simply hating. After all, our art is beautiful, our craft is perfect.

This is also a form of support that devalues. And, in devaluing art, it devalues the artist which, in turn, makes them lazy – lazy art is boring.

Maybe a part of me is longing for the think piece about the rape-y opening to the club hit “you guy.” The one that Ndinda managed to point out in a single tweet. Perhaps I’m still waiting to read about poetry in Kenya in a way that actually engages with a couple of poems as opposed to a story that says “this is a poet. They write poetry.” The twitter debate about the content of their work.

(but you’re a writer)

As with everything this is, more than anything, a plea to myself. What does it mean to begin to centre here? To engage with here? To imagine with here?

On the surface this question has an obvious answer. We live here, of course we imagine with here. Except we don’t. Except maybe the culture of rigorous unimagining has left us incapable of imagining ourselves and, if we can’t imagine ourselves then we are incapable of creating value. And while we can’t create value we fail to see the value that others have created. And what good is a light if we are all blind?

“So, shut up and listen”

– Dela

“this girl, her music is diverse”

– Fena

“there is no African poetry only a guy in buruburu trying to score more booze”

– Gachagua

“na siwezi mshow ati life ni exam ju /nitatupiwa sufuria/na hizo ndio aibu ndogo mi sipendi/ so nikikupita tao/jua sio madharau”

– Just a band

Artists have been talking about visibility for a while.

This thing we do to local artists. This thing we call support when we pay a lot of money to go to a concert then stand at the back and have a beer while catching up with friends the whole time. This thing where we pick names and rattle them off in conversation without ever having read a single thing that they have written. This thing where we refuse to read Dust because it’s too difficult but force our way through Foucault  and Fanon because they’re “important.” This thing needs to stop.

It’s time we decided to engage with art from here. To listen, to challenge, to think with, to speak with, to buy, to read, to watch to feel. Local artists don’t need support. We need to be engaged with, to be challenged. Or, failing that, left alone.

The Media Which Cried Wolf

Brenda Wambui
17 February ,2015

No street protests in support of KTN, NTV and Citizen TV, who collectively, have served Kenyans with dedication & passion over 25 years?

Saddique Shaban

The human mind is capable of amazing things, one of which is selective amnesia.

In March 2013, Uhuru Kenyatta was declared Kenya’s fourth president, and barring his supporters, no one was happier than Kenyan media houses. One could tell that as they were reporting this victory, most of them were celebrating. It was as if they had also won. What had they won? We do not know. Before this, when asked if they had any questions regarding the 2013 elections by the Independent Electoral and Boundaries Commission (IEBC) after foreign media houses had been given the chance to ask, they were quiet. They had nothing to say. All we heard was their deafening silence.

Several journalists then went to take tea with Uhuru Kenyatta at Statehouse following his victory, in what is still seen as the transaction in which the Kenyan media officially agreed to sell out the Kenyan people. After that, we experienced a deluge of songs of praise by the media about the Jubilee coalition. They could do no wrong. The role of Official Opposition, People’s Watchdog and Informant of the People was taken over by Kenyans online, especially since the actual Official Opposition, CORD, was too busy making a fool of itself.

In 2014, digital migration in Kenya became imminent, even though it had gone over the 2012 deadline that former President Mwai Kibaki had set. Since then, we have experienced drama akin to that of a Mexican telenovela. Recently, the four TV stations (NTV, KTN, Citizen TV and QTV) argued that their channels were switched off by the Communication Authority of Kenya (CAK) after they raided their transmitters in Limuru and switched off their analogue equipment. The CAK, on the other hand, argues that the three stations turned off their signal in protest (this sounds more plausible, since they could have continued to air on digital channels, but chose not to) and aired inaccurate messages in breach of their licensing (i.e. the claims they are making against the government, as well as competitors such as GoTV and Star Times).

Before this, the rebel media houses (NMG, SMG and RMS) which own NTV and QTV, KTN and Citizen TV respectively, in a recent message airing in place of their regular programming, asked their viewers not to buy decoders from GoTV and Star Times, two pay TV distributors, so as to watch their channels. This, of course, is anti-competitive behavior and is against the law, which apparently only they should apply selectively. It led to the withdrawal of the self-provisioning license they had been issued, which was then reinstated pending a fine for bad behavior. They have claimed that despite the Supreme Court ruling to have digital licenses issued, the CA has not complied and thus forced a shutdown of signals. They also said that 90% of Kenyans were in a TV blackout, which is strange, given that only 2,650,200 households (30% of Kenyan households) own TV sets as per the last population and housing census in 2009.

Is it not a twist of poetic justice, then, that the media expects screams of protest in its favour, but all it hears is silence? How can they forget how they let us down in our time of need, yet they ask us to fight for them? These are the same journalists who claimed that in the protest against the primary school land grabbing in Lang’ata, activists “used” children to get what they wanted. Yet they wonder why no activists are on the street fighting for them. All of a sudden, they have important things to say. Very important things, in fact. About Tony Blair’s dalliance with our government. About corruption. About murder.

I have seen tweets where certain journalists suggest that Uhuru and his juggernaut must remember that the media played a big role in their election, and can be their undoing in the next election. That the media delivered the Jubilee Coalition a win, yet the government is clamping down on free speech. Was there a silent agreement? Deliver us a win in the election and you will be safe? I wonder.

This to me is evidence that these media houses are being hypocritical when they frame this war with the government as an attack on free speech and freedom of the press. Democracy – government of the people by the people for the people – and freedom go hand in hand. People can only govern themselves if they have information, and a wide angle view of situations. The media then serves as an important source of information in a democracy. We rely on the media to tell us what is going on in our society, as we cannot possibly experience everything. We rely on them to provide the context of the situation, so that we may know how to react. We rely on them to decide what matters and how it gets interpreted. We rely on them to check the government’s power. Freedom of the press is not an end in itself, it exists to make sure that a democracy is functional. Watching this wrangle, it is clear that it is nothing but a fight over market dominance and the status quo. The media houses in question speak of freedom of press as an end in itself, and this should show Kenyans that this is not being done for them, but for the balance sheet.

This is not to say that the claims being made by the three media houses are false, and that there was no impropriety involved in the awarding of the license to Pan Africa Network Group (PANG). The three media houses may very well be right about this. In fact, based on Kenya’s history, it is extremely likely that if investigated, there is another Chickengate scandal lying in wait in the digital migration process. This is to say that when it comes to keeping the government open and accountable, as any democratic government should aim to be, these media houses have largely failed.

The three media houses remind me of the boy who cried wolf. Kenyans have long protested for their freedom of speech, which goes hand in hand with freedom of press, but our counterparts in the media have spurned us time and time again, choosing only to turn to us when in dire need. Where were they when we needed them to cover the Security Bill/Act? When we needed them to stand by bloggers and internet users against unnecessary regulation and persecution by government? We have protested when it was necessary, when our freedoms were actually under attack, but not this time. The media is supposed to be an intermediary between the government and the people. What are the people to do when this intermediary publicly takes side with the government one day, and then asks us to rally for it the next? Can they really be trusted?

I invite these three media houses for a seat at our table. How does it feel to shout into the abyss, and hear nothing but the sound of silence? To be screwed over by the government? Were you not the ones who had “accept and move on” on replay for days on end after the 2013 elections? We suggest you do the same.

Watching Our Own Backs

Michael Onsando
27 January ,2015

“What’s in a name? that which we

call a rose

by any other name would smell

as sweet”

– Shakespeare, Romeo and Juliet.

 

It’s something else when we begin to imagine the amount of damage that has been done to humankind in defense of names. Names are an extension of authority. Saying a name is to bring, for a lingering moment, the presence of the person named. And, if this presence is invoked then this presence must be defended.

“Halt! In the name of the king!” is one such statement. If it were not for the king’s name one could easily ask the question “why?” and “in the name of the king” is the answer.

Names are answers.

Think about the question that comes along with entitlement “Do you know who I am?” It asks the listener to think about the name of the person, and all that name stands for. When a name is invoked and not recognized, it is as if a wound has been inflicted. A perceived authority shattered.

There are two ways to handle this rejection. The first is to accept that no such authority exists, and the second is to deny the rejection.

 

“We are the ones who make the laws in the government, we can break them.”

– Alfred Keter

 

“Has activism gone too far?”

– Citizen TV

It is with this knowledge that I question our media’s approach to names. When Larry Madowo announced that he was having Keter on the news, what name was being given credence to speak? What does it mean to have a media that constantly values the voices of the perpetrators of violence over the voices of its victims? What did Alfred Keter have to say? Hadn’t we already heard what he had to say? Hadn’t we heard him loud and clear?

(but give him a chance to clear his name…)

What names do we allow that chance, though? When you’re giving powerful perpetrators of violence a stage to defend themselves against claims from victims of said violence, are you working? This is the same media that drags the names of victims of said violence from same powerful people through the ground. That slut-shamed Mercy Keino after her brutal murder. That refused to cover #kasaraniconcentrationcamp and runs all forms of islamophobic, sexist, racist messages.

Something broke somewhere.

Inside many homes victims sit, watching the person who threatened them explain everything away. Already, they know that no one wants to know what happened. Knowing that even the people who tell stories would quickly spin away any sudden disappearance.  How can they compete? How can they challenge this?

Yet every time there is a media gagging bill, the media hits the streets claiming they have a right to speak. To say what? If the plan is to already say government approved words or have government approved names, then why demand freedom?

Even as I use the word freedom Gukira reminds me that it is a flawed concept. The larger idea is to have a shareable world. To imagine that there is space for all of us, for all our names. Instead I remember the media giving all the airtime to Tony Mochama and completely shutting out Shailja Patel in the claim of getting “the other side of the story.”

Thus, violence continues to propagate itself. Stuck with a media that is centered around reiterating reporting and forgetting, we are lured into that cycle. The violence, being always presented to us as novel, always appears to be novel. Despite the attempts of many we are, predominantly, presented with new, unanalysed, information every day.

And this is how we find ourselves here, barely a month into the year and already a Member of Parliament is caught on camera talking about how “he fucks stupid, innocent people.” He literally insulted every single citizen of the country.

The novel case for last week was Weston Hotel. Again, the media focused on Ruto. Let us hear what he has to say about these allegations of his hotel being on a school kids playground. Willfully obtuse, the media focused everything else except the matter at hand.

Last year all major papers ran a ‘Moi at 90’ piece. Articles were dedicated to clearing the name of the man who commissioned the Nyayo torture chambers.

“Are we just going to sit around and wait to be blown to bits by terrorists?”

– Actual Headline

“Every little two-bit Somali has a big dream – to blow us up, knock down our buildings and slaughter our children.”

– Actual excerpt

This is something that the media here has been doing for a while. It is not new. It is not different. It doesn’t matter if the faces have changed. It’s the same game. Repeatedly, the media in Kenya has shown that its primary role is to defend the ‘good names’ of some people at any cost.

We do not have the names of the 1300+ people who died during the Post Election Violence anywhere. We do not have the names of the witnesses who have been disappeared in Kenya’s case at the ICC. We do not have the names of the girl from Lang’ata primary who has been hospitalized twice because she was teargassed by the police. We do not have the name of the child who was born in #Kasaraniconcentrationcamp, umbilical cord snapped by their aunts’ fingernails. We do not have the names of the street merchants whose stalls were torn down at 3AM in the morning. Nor of the people who had a house collapse on them because of dodgy construction.

Instead we have been given private developers, dark forces, faceless grabbers and other monsters that we chase in a bid to protect the names that we do know, but whisper. The names that we know can be attached to various crimes but are afraid to say out loud.

We need our names. Give us our names.

The First Thing We Do, Let’s Kill All The Lawyers

Guest Writer
20 May ,2014

– Dick, the Butcher in Shakespeare’s Henry VI

by Awuor Anyango

On attending the Centre for Intellectual property and Information Technology Law (CIPIT) World Intellectual Property day at the Strathmore Law School, I was a bit shocked at the turn out. Lawyers easily outnumbered the visual artists, despite the session being based on the film industry and the Intellectual Property Rights therein. As an aspiring film-maker, fine artist, photographer and a former reader of laws I am all too well aware of the legal issues that the creative industry in Kenya faces. Piracy, bullying by the broadcasters who sometimes tweak your script and broadcast your show as their own to your total exclusion, contracts whose terms are not fulfilled under the threat of being blacklisted by industry oligopolies, copycats who change the colour of your painting and then claim it as their own; these are just some of the complaints I come across daily.

I, at least, expected some of these complainants to be sitting in the room ready to raise hell. Instead the crowd was a mix of IP lawyers, some of whom were simply there to show face for their firms, and a sprinkling of industry giants inevitably linked to the Kenya Film Commission, Performance Rights Society of Kenya (PRISK) and Kenya Association of Music Producers all of whom were presenting on the issue. It seems the assumption that lawyers were hoofed animals with wings for ears and horns for noses was not enough to bring even the most curious of creatives to the venue.

In 2007, WIPO (World Intellectual Property Organization) completed a study that ranked the creative economy in Kenya as the fifth largest contributor to the national economy. The total value added of copyright-based industries in 2007 amounted to about KES 85.21 billion, which represented 5.32% of Kenya’s GDP, doing better than the agriculture, forestry, education and health sectors of the Kenyan economy[1]. Assuming the figure has grown, how then do we, as creatives, manage to sit back silently and not push for a cultural policy of some sort or even address our issues?

The answer is simple: we hate lawyers! How else do you explain an event, hosted for the benefit of an industry to enable its stakeholders discuss legal matters pertinent to their work, failing to attract its very stakeholders? We were, either way, invited to an impromptu discussion on the reasons why the creative industry at large was very shy of lawyers or legal protection of any kind, yet so loud when it came to complaining about the injustices they did not bother to protect themselves against from the onset.

The discussion brought some rather interesting points from the creatives:

  • I don’t copyright my scripts because it costs money (but I will complain when my script is stolen, tweaked and broadcast as someone else’s)
  • I can’t sign a non-disclosure agreement with broadcasters and producers because they have the upper hand and they are doing me a favour by looking at my script so they basically have a right to steal my idea; it’s a backhanded compliment to my artistry
  • I can’t challenge a non-performance of contract by a broadcaster or producer because I risk “never finding work in the industry again” (they operate like a cartel/oligopoly anyway)
  • I can’t go to a lawyer because they are expensive and lawyers are out for blood, they never leave a working relationship behind after dealing with two parties
  • I signed a contract and now they are using my show on more than one channel, more than once a day and I’m not being paid for that; of course I didn’t talk to a lawyer before signing the contract or read that much of it anyway because lawyers are expensive and out for blood
  • I acted in a movie and now it’s being shown all over Africa and I’m not being paid for that probably because I didn’t quite look at my contract or feel I had a say in what could go into it and what could not
  • The real enemy is the broadcaster and there is no broadcaster present to defend themselves, but then we’re not quite sure we would say anything to the broadcaster because of the oligopoly threatening to blacklist us
  • I decided to collaborate with someone and now they are earning more from the project than I am but we’re friends so we don’t want to bring an evil lawyer to break our friendship up with their legal jargon and blood-lust
  • If I’m such a “hard head” another actor/director/producer will do the job for less and with less conditions and COTU won’t let us form any kind of guild or union from which we can dictate a minimum salary like lawyers do
  • Court processes take too long and cost too much money, even though we know nothing about them and haven’t taken part in any, we just assume they do
  • Is there a successful case of a creative suing and winning? Why would we risk being the first?

There was no shortage of problems from the audio-visual creatives in the room. Then it was the lawyers’ turn. Gerry Gitonga of Bryant &Associates advocates made a gruelling statement: “Creatives don’t sue enough!” and as there was no number of laws governing the kind of issues the creative industry faces, then it was easier to leave it to judges to interpret the laws and provide precedent (previous judgements upheld as law).

The solution was simple: use a lawyer. Of course this didn’t sit well and a number of creatives reiterated the points on lawyers “just wanting the little money we have” which is clearly more important than safeguarding the vast amounts of money we lose to piracy, combating bullying by broadcasters and our ever growing list of problems. Liz Lenjo of JGIP consultants then agreed that lawyers wanted a slice of the creative economy…but that wasn’t the main point because they often take on pro bono cases. Once the assumption of all our legal issues being handled for free settled the room, (perhaps we shouldn’t kill the lawyers after all?) the lawyers were free to advise us on what rights there were in film, seeing as IP rights are now constitutional rights under the new constitution of Kenya.

An Actor whose name I didn’t catch (he claimed to run the blog www.actors.co.ke ) then demanded severally for his rights in film, which elicited suppressed laughter from the writers, producers and directors in the room. The hierarchy of film rests with these three people, often with people arguing academically over who is supreme; the writer or the director. Yes, creating an audio-visual work takes a village…but even villages have chiefs! And when he was told that he had a right to equitable (fair) remuneration (payment) for his performance and that was all, he didn’t seem too convinced. Unfortunately, the law doesn’t provide for you to go into someone’s play, get dressed, made-up, directed and given the lines you are to say and then turn around and claim that you somehow own anything there other than payment for your work.

It is an unfortunate turn of events that someone should look into. It is unanimously agreed, world over, that actors are merely props and can depend only on their skill and fanbase to demand for higher pay. This is the norm in Hollywood, and I do not foresee a future in Kenya where actors can claim rights in a character they neither created nor envisioned; A character whose sentences, quirks, personality, world and purpose does not belong to the actor merely performing.

June Gachui of June Gachui Intellectual property (JGIP) Consultants made a presentation, though late in timing, which proved to be most useful with delightful titbits, like the very unique practice of going through a contract before signing it (something that many visual artists have not heard of), how to put a contract together because verbally agreeing to something isn’t the best for legal remedies, and even going to see a lawyer so they can add some fearful words in there so that each party knows this is serious (pursue you to the full extent of the law). She then went on to discuss the different types of contracts, that is Licences and Assignments, in which if you sign a licence you retain property in the work. If the broadcaster decides to show your work on another network then you can veto this decision, whereas an assignment is giving up all ownership of a project for a lump-sum, therefore if your project is going live in Africa after you assigned it to a media house in Cape Town for a measly amount, then you had it coming.

All in all, I felt that this was a useful platform, save for the failings that were the missing crowd and the lack of broadcasters to address the issues levelled at them. I could easily fault the marketing of the session, seeing as I was there via proxy (my friend, an advocate of the high court, received an invite and thought to bring me along) but the public perception of lawyers and legal issues, especially in the creative industry can easily be faulted too. It was reiterated that artists are not seen as professionals for the simple reason that we refuse to treat ourselves as such.

In an industry mired with friendly collaborations that turn sour, contracts that are signed in excitement and almost inevitably regretted, and scripts that are traded on trust and nothing else, you would think that legal recourse would be something creatives would welcome. The resistance to this idea of signing a contract before collaborating or reading a contract before signing it is mere folly. Should the creative industry be free of the mandatory minimum legal involvement that other industries partake in? Should we shun the legal safeguards that would save us millions in losses? Should we dare to trade in our misconceptions of lawyers for the legal protection a basic training could give us? So maybe we shouldn’t kill all the lawyers just yet, though the law firms present warned that going to a lawyer who actually practices IP would be a great start, seeing as some unnamed lawyer used the contract for selling a car as a contract for licensing a movie.

Should the entire industry undertake a behavioural shift? Upon entering the Kenyan Art scene I was at once steeped in the obligatory practice of the oral agreement. It seems taboo to mention a contract, and more so to take your time reading and analysing one when it is handed to you. Whereas businessmen may have expensive lunches over which they haggle through prices and profits, creatives have chill drinking sessions over which they discuss inspiration and prospective projects with the hopes that no one takes your idea and runs with it. Would it be simple to have a mutual understanding that can be upheld in court? Our problem with unwritten conventions, the ones our creative industry heavily relies on, is that there is no industrial action against the people who break them.

A convention is a set of agreed, stipulated, or generally accepted standardsnormssocial norms, or criteria, often taking the form of a custom. Certain types of rules or customs may become law and regulatory legislation may be introduced to formalize or enforce the convention. The constitution of the United Kingdom is riddled with conventions that are outdated but still upheld simply because interested parties will take non-legal action against the party that breaks the convention. There is no such reliance in the Kenyan creative industry.

As stated before, if one should pass up on an opportunity, someone else will jump at it. This divisive politics renders the use of conventions useless in the industry and paves the way for legal recourse. If a convention is broken, it is more likely that the victim will be more victimised than it is that the oppressor will face some kind of justice. The fear of being blacklisted for standing up when wronged is a clear indication of this.

In the face of these industry problems, a lack of unity in voice and industrial action, a common enemy and oppressor, and a common inability to determine, uphold and follow through with oral agreements, should we then maturely move on from constantly broken conventions to legally upheld contracts and agreements? Is it probable that we can set aside out popular dislike for the legal fraternity and perhaps attempt to save the profits of a growing creative industry?

[1] The Economic Contribution of Copyright-Based Industries in Kenya Dickson Nyariki (Main Author), Oliver Wasonga, Calleb Otieno, Eric Ogadho, Charles Ikutwa, Julius Kithinji: page 58, section 5.2 retrieved from http://www.wipo.int/export/sites/www/copyright/en/performance/pdf/econ_contribution_cr_ke.pdf

Awuor Onyango is a former reader of Laws who now has a vested interest in the creative industry with a focus on Fine Art, Photography, Fashion and Film. She is currently studying Fine Art and Film at Kenyatta University while also writing, taking photograph assignments and using her legal background to navigate the complicated arts, culture and societal murk through organizations such as African Art Agenda, which she co-founded, and others.  

The Africas And the Complexity of Our Media Problems

Michael Onsando
7 January ,2014

I don’t like this expression ‘First World problems.’ It is false and it is condescending.

– Teju Cole

An article in Al Jazeera talks about how the Western media is always getting the story wrong. It is, more importantly, asking why we instinctively turn to Western Media outlets – as if the rest of the media on the scene is full of monkeys at a typewriter who are yet to figure out who dies in Hamlet.

I’ve been arrested by the idea of how the Africas (the term ‘the Africas’ was coined by Ann Daramola to demonstrate the diversity within Africa) and, more specifically, Kenya (doesn’t) work. I’m wary of the media, all of it. Media from the West, the East, the North, the South and, sometimes, even dead in the Middle. Every media outlet has an agenda (I realise the irony of writing this, and posting it on an online journal). This skepticism of the media is what keeps me out of the media debate on how information is gathered and disseminated. While I agree the Western media gets the Africas horribly wrong, I think we err deeply as well when telling our stories.

Allow me to go back a little, in order to move forward.

A lot of my friends have dropped their English names. The argument is to be reclaiming their heritage. Getting back what was, authentically, African. While this argument is sound and the intent exists, I believe dropping the English part of one’s name is, to a large extent, to deny the complexity of the times within which the Africas exist.

As much as we reject the ways of the acquired part of our identity, we cannot deny the fact that it is deeply embedded within us as well. We would love to find our way back to our roots, to our culture, but the extent to which this culture has been eroded, changed, vilified and manipulated does not allow us to go back. At least not back in the way we imagine it would be. One cannot speak as to how culture within the Africas would have grown or changed had we remained unperturbed for those decades.

The identity of the Kenyan is, as much, defined by the West as it is defined by us. I grew up listening to Eminem, alongside E-sir. On TV I had to sit through hours of Oprah till my sister came in and sat me through hours of Shaka Zulu.

This is the crisis we have.

While we do rigorously fight to define ourselves – as we must – we mustn’t forget  that a definition has successfully been imposed upon and within us. We are not just who we are but who we have been told we are.

And it is not only the personal that is a struggle. We have nations that have to deal with defining who they are and what democracy and survival mean for them while trying to keep from being exploited. Kenya, for example, thought we had it down with our valley of peace under Mwai Kibaki then he was kicked out. Then, five years later, peace was no more. Then, five years later, peace was the tool that was used to bring Uhuru Kenyatta  into power.

Identity is a hard enough nut to crack without having to deal with the surrounding pressures of a global demand for product and a history of colonization.

The burden of identity is always upon the identified.

Chuma Nwokolo

The thing with identity is as individuals and, indeed, as states we must be allowed to find it on our own. One of the most powerful tools of identity is the media. The stories that we read, see, hear and discover all shape the identity formed of others. By virtue of the media being such a powerful tool for identity we must think about how that tool is used and, in effect, what identity we have created.

Upumbafuness has set about trying to start tracking misogyny in the media in Kenya. They work on user submissions and haven’t gained much traction. This is not to say that the media isn’t full of misogyny – it is. One can only guess that the administrators had problems keeping up with updating the blog. However, it has become an interesting digging ground with the few articles it has managed to gather. They range from defending rapists to overt homophobia.

I think what makes me wary about the essays that insist we tell our own story isn’t that they are wrong – they aren’t. It is very important that we have this story told by people who understand the layer, nuances and histories of a place. It’s even more important that the Western media gets the whole superiority complex out of their minds. No, what bothers me is that they all seem to stem from a place where we assume that the media houses here will do such a great job of telling those stories even when we have no evidence of the same.

Chimamanda Ngozi Adichie gave a famous TED talk called ‘The Danger of a Single Story.” In this talk she speaks of how shocked a roommate of hers was shocked that she listened to Beyonce. As if somehow a young lady from Nigeria must only know of cooking pots and trees. Aamer Rahman in a skit called ‘Workshops for Whitey’ talks about being ‘complimented’ on his English and how condescending and dumb it is. Teju Cole (quoted above) talks about the hashtag #FirstWorldProblems. The idea of the Africas being a dark continent that struggles for survival is dumb, and is exactly how the Western media would like to portray it.

However, the reverse  is false as well.

I get particularly uncomfortable when people counter poverty stories with stories of cities and metropolitan areas. While I understand the origin of the reaction, and what work it seeks to do, I don’t think it does that work.  I think the one facilitates in the erasing of the other of vice versa.

All the silly stuff of life doesn’t disappear just because you’re black and live in a poorer country.

– More Teju Cole

I’m wary of media – all of it. I think the code of conduct that is taught is just another piece of paper that they read, in order to receive another piece of paper. The idea that an institution owned by the rich and powerful will expose the rich and powerful is slightly laughable. However, if we must think critically about the media (as we must about everything) then we must.

The Western media gets the Africas wrong – all the time, and that sucks. We should point it out and give them hell. In the same breath, media within the Africas gets them wrong as well and one can only hope that we do the same.