HAPPIER TIMES: President Uhuru Kenyatta with his deputy William Ruto. Jubilee had put such a lock on Parliament through the ?tyranny of numbers? factor that Kenyans were beginning to stop expecting surprises from the House.Photo/File
MUZZLED: Journalists protest over the harsh media law. As far as the combined journalism sector is concerned, whichever way it turns, the presidency must not and indeed can?t win against the media on this one.Photo/File
FIRM: Ministry of Information Cabinet Secretary Dr Fred Matiang?i has been impervious to all pleas to postpone the digital switch-off to a more appropriate time. Photo/File
RESOLVED: Media Owners Association chair Kiprono Kittony. The media won?t hear of a state-managed regulator whatever international best-practice might be.Photo/File
What does it mean when a key amendment Bill taken to a Parliament that was acting independently, and in defence of its own interests, is defeated in circumstances that also, for the first time, overturn a lock-on-the-House factor like the ‘Tyranny of Numbers’?
Another question: What does it mean when the President, moving at the same Parliament’s prompting, suspends selected members of the Judicial Service Commission, despite an existing court order that the Legislature not infringe on the Judiciary, and a court swiftly sets the Presidential order aside?
And not only that, the court actually bars a tribunal appointed by the President to probe the errant JSC members from taking its oath of office preliminary to discharging its terms of reference.
When Parliament shot down the Miscellaneous Amendments Bill 2013’s amendments to the Public Benefits Organizations Act, 2013 (No. 18 of 2013) on Wednesday, there were gasps of surprise on all sides.
The ruling Jubilee Coalition of President Uhuru Kenyatta’s TNA a nd Deputy President William Ruto’s URP and affiliated parties had put such a lock on Parliament through the 'tyranny of numbers' factor that Kenyans were beginning to stop expecting any surprises from the floor of the House.
And then, the truly unexpected happened on Wednesday.
But the tyranny of numbers factor was quickly restored in only a matter of hours, at high noon on Thursday, when Parliament passed the President’s Memorandum to the Kenya Information and Communications (KICA) (Amendment) Bill No 19, 2013, in a House with only 140 MPs present.
In barely six minutes, with Nairobi Women’s Representative Rachel Shebesh chairing the Committee of the Whole House, the ' Ayes' had it, approving five clauses in the President’s Memorandum (clauses 7, 17, 37, 39, and 41), and thereby passing KICA without amendment.
The anatomy of what has happened to the Presidency in recent days in Parliament, the courts, the multimedia newsrooms (journalists marched in Nairobi in a large protest demo) and inside the civil society sector is eye-opening.
The vote against the NGO Act set a precedent; it signaled it could happen again and happen on a vote that is much more strategic, from Jubilee’s standpoint at the top, than the whole question of reining in the civil society sector.
Other governments have successfully, but still controversially, moved draconian legislation in recent times against much bigger civil society sectors than the Kenyan (barely 10,000 NGOs), including India, which has 3.3 million NGOs, and Russia (277,000).
Another Kenyatta, Another Era of Amendments?
The Jubilee government’s failure to move its own version of Russia’s July 2012 Draft Legislation 102766-6, which requires NGOs and other non-profit organizations that receive foreign funding to register as Foreign Agents, was a major blow, but largely self-inflicted.
The second dawning realisation is the discovery on all sides that Jubilee is not a monolith – some members of the Kikuyu frontline side of the ruling alliance actually voted against the amendments to the Public Benefits Organizations Act, 2013, as did some Kalenjin MPs.
The Act sought to bar NGOs from receiving more than 15 per cent of their funding from foreign sources, a proposal which was simply laughed out of the House, beginning with Jubilee hawk and Leader of the Majority Aden Duale , who hails from an arid and semi-arid area, when he declared that he is himself “a good recipient of donor funding”.
Duale also announced the throwing out of an amendment that sought to make the Salaries and Remunerations Commission (SRC) a permanent commission.
Also chucked out was an amendment to the National Security Intelligence Service Act that would have empowered the Director General of the NSIS to intercept digital communications without seeking warrants.
General (Rtd) Michael Gichangi must have viewed this major snub very dimly indeed, particularly as the amendment sought to strengthen his hand in other ways. Suffering such a setback in the aftermath of September’s terror attack on the Westgate Mall was a body blow.
The Miscellaneous Amendments Bill 2013 is an omnibus Bill seeking to amendment 49 different Acts in one fell swoop. It would appear, then, that the second President Kenyatta has begun his first term much like his dad half-a-century before him, with a legislative agenda that engineers amendments to the Constitution that alter dozens of laws in one go.
But the PBO Act was an absolute no-brainer – it clearly failed to consider where 85 per cent of NGO funding could possibly be sourced from within Kenya. A placard brandished by a protester in one of many demonstrations against the amendment asked simply, “Who built the toilets in Kibera?”
NGOs ‘know every village, road,field’
The more a neighbourhood or region counts as a hardship area, the handier NGO and other donor interventions prove to be.
Not all members of ruling the Jubilee Coalition, even at the very top, come from non-hardship areas. It therefore follows that this coalition cannot possibly be like-minded on a subject as controversial as reigning in NGO activities and micro-managing the sector right down to finances.
Worldwide, NGOs take the slack and go where governments fear to tread, in terms of expertise, capacity and financing, making humanitarian interventions to relieve poverty, conflict and natural calamities, environmental concerns and issues of civil liberties.
In order to deliver, NGOs must be able to reach any part of a country, under any conditions, including the most dire disaster conditions immediately following civil wars and genocides and even major earthquakes and floods, including the immediate aftermath of tsunamis, the largest mega-death single events so far known to humankind.
In a tirade against NGOs portraying the entire sector in Zimbabwe and elsewhere as little more than nests of spies working for Western intelligence, the Sunday Mail of Harare recently exposed its own, and its masters ' deepest fears when it made the following observation: “NGOs are better at facilitating the setting up of local ‘human terrain teams’ based on the dictum: ‘know every village, road, field, population group, tribal leader and ancient governance’ ”.
Why is this remarkable, given that NGOs confront many of the most adverse situations known to humans? According to the Sunday Mail, it is all “in preparation for effective military and other intervention”.
Too many governments, in countries both big and small, fairly advanced and not, including the Jubilee regime at the very top, prefer to view the NGO sector with as jaundiced an eye as the Sunday Mail of Zimbabwe.
Folly of taking media sector head-on
As for the media sector, few nations have as tough a regulatory regime as the most open democracies – the United States and the United Kingdom.
In the US, the Federal Communications Commission (FCC) polices even community, decency and moral standards, and has imposed record-setting fines over the decades since it was founded in 1934.
The FCC’s enforcers are actually presidential nominees and appointees, but their conduct and interventions have rarely, if ever, been perceived to be politically partisan.
In Britain, as of this writing, a titanic struggle is on between the government of Prime Minister David Cameron and the Guardian newspaper group, concerning its serial exposes based on the vast collection of secret documents that the American National Security Agency whistleblower and self-exile Edward Norton is leaking.
The Kenyan media sector simply won’t hear of a state-managed regulator filled with government nominees, whatever international best-practice elsewhere might be. Memories of the control-freak Kanu era are still too fresh, even at a dozen years’ remove since President Daniel arap Moi’s exit.
The KICA Bill sailed through, yes, but it will now be challenged by a still irate and forthright Media Owners Association, Editors’ Guild, and other stakeholder caucuses.
As far as the combined journalism sector is concerned, whichever way it turns, the Presidency must not and indeed can’t, win against the media on this one.
From the point of view of the newsrooms and their boardrooms, it is an existential struggle, and the threat is to a free, diverse and more vibrant media sector.
A few months ago when the President hosted journalists to a breakfast at State House, few could have foreseen the kind of fallout between his now eight-month-old administration and the media.
One of the ugliest aspects of the now escalating face-off is the abrupt switch off of analogue broadcasting signals in Nairobi County scheduled for December 13, 2013, five days from now.
This is almost as boneheaded a decision as the abortive 15% cap on NGO foreign funding. In a variety of ways, the Government is actually cutting off its nose to spite its own face.
Thursday, December 13, is the day after the 50th Jamhuri Day, the climax of festivities in the capital city that have presumably been in the making for five decades. Thursday has even been declared a public holiday.
All the feel-good factors of the bread-and-circus paradigm known to enlightened rulers since the heyday of the Roman Empire will be squandered by Jubilee as far as millions of Kenyan TV viewers are concerned. Unless one has a set-top box that will cost in the region of KSh5,000 and a monthly subscription of KSh500 you had better fork out the money for a digital TV, something that the vast majority of viewers in Nairobi and its environs, who comprise the largest viewing demographic and advertisers’ target market nationwide, will not have by that date. In any case less than 150,000 of the devices are available.
The Ministry of Information, Communication and Technology, under Cabinet Secretary Dr Fred Matiang’i, has been impervious to all pleas from both broadcasting media houses, and audiences as well as other stakeholders, to postpone the switch-off to a more appropriate time than the 50th Festive season and school holidays since Independence.
If the adversarial and implacable flavor of the face-off over the KICA Act and the insensitive timing of the analogue switch-off are characteristic of relations between the Jubilee regime and the multimedia journalism sector, going forward, then very hard winds will blow in both directions in the course of 2014.
The Big Picture: Image is everything
When Daily Nation columnist Macharia Gaitho wrote early in the week, “Once the independent media is neutralised, ‘evil society’ [civil society] silenced and an independent Judiciary crippled, the stage will be fully set for reincarnation of the Kanu regime clothed in digital colours.
The late President Jomo Kenyatta must be looking on with satisfaction, and President Moi purring with satisfaction. The children of Kanu are in charge”, he mightily upset a whole spectrum of Jubilee supporters.
But he also got them wondering. Whatever their real agenda, President Kenyatta and Deputy President Ruto are certainly not having an easy time of it.
On the evidence of the events of the last fortnight, inside Kenya, their strategy seems to be convoluted in the extreme. Uhuru’s tactic and strategy of bouncing the KICA Bill off a Parliament that clearly cannot possibly muster 233, or two-thirds, of its Members to defeat it, was a move of the deepest cunning but it fooled only a few.
Given their engagements with the International Criminal Court (ICC) and the international hullabaloo it has kicked up, both pro and contra, it would seem that the last thing the two leaders should want is a Parliament, Judiciary, civil society and media that are actively ranged against their agenda.
The Presidency is in a hole, but it appears to want to continue digging. Is there method to this seeming illogic? Until the ICC matter is settled definitively and results in the removal and retirement of that particular albatross from around both their necks, President Kenyatta and Deputy President Ruto need a minimum of institutional and democratic fuss within their own borders.
Having such pillars of democracy and good governance as their home Judiciary, media and civil society sectors in indignant and forthright opposition to their administration is a strange way of moving forward.
If anything, what the Kenyan Presidency needs most at the end of 2013 and the beginning of 2014 is a massive reputational image rebranding – and so does the nation brand called Kenya, both internally and internationally.
This internal seething and turbulence across too many crucial sectors is giving out all the wrong signals externally.
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