Wednesday, October 3rd, 2018
Bloggers have won the first round in a legal battle with the government over the Computer Misuse and Cyber Crime Act after the High Court ruled that the disputed law remains suspended.
Lady Justice Wilfrida Okwany dismissed the government’s request to have the law enforced, saying the temporary order issued earlier by her colleague, Justice Enoch Chacha Mwita, was justified. “I find that the injury complained of has to be balanced with the legal requirement that all laws pass the constitutional validity test,” said Justice Okwany.
She added: “In addition to the above consideration, the court is also bound to consider where the public interest lies and, in this case, I find that nothing can be of great public interest than the court playing its constitutional mandate of ensuring that the individual rights and freedoms are protected and that laws, especially those creating offences, conform to the law.”
On May 29, Justice Mwita temporarily suspended implementation of 22 sections of the cybercrime law which allegedly limits fundamental freedoms, including those of information and expression.
The judge issued the order in a case in which the Bloggers Association of Kenya (BAKE) sued the Attorney-General, the Speaker of the National Assembly, the Inspector-General of Police and the Director of Public Prosecution.
The Kenya Union of Journalists and Article 19 are listed as interested parties in the case which challenges sections of the Computer Misuse and Cyber Crimes Act 2018.
But the AG, through the Solicitor General, asked the court to set aside that order while claiming that it would be difficult to charge suspects with certain offences created by the new Act or fulfil some international obligations.
Justice Okwany dismissed this request and ruled that it would be improper for her to heed the government’s plea.
She faulted the AG for tactfully delaying the case instead of allowing the constitutionality of sections of the disputed law to be determined once and for all.
“A perusal of the order issued by Justice Mwita shows that he satisfied himself that there was a prema facie case warranting the specific orders that he issued,” said Justice Okwany.
But Bake argues that this is already taken care of under the Defamation Act and that criminal libel or defamation was declared unconstitutional by the High Court in February 2017.
It is only school principals, who are also centre managers, who will be allowed to have mobile phones during the administration of the national examinations, Education Cabinet Secretary Amina Mohamed has said.
Ms Mohamed said the phones will be monitored by security officers on a 24-hour basis to get to know which people the head teachers will be communicating with during the period.
“We will restrict use of mobile phones to principals alone; supervisors, invigilators and security officers will not have phones in schools during examinations,” said the CS.
She said the new regulation is aimed at curbing cheating in the national examinations which start late this month.
Ms Mohamed also announced that more schools had been put under surveillance for planning to cheat in the examinations.
“Kenya National Examinations Council (Knec) chairman, Prof George Magoha, indicated that there are 30 schools under surveillance. We have more schools than the 30 and we will not spare anyone who gets involved in cheating,” she warned.
The CS made the remarks at the Kenya Institute of Curriculum Development after meeting members of the curriculum steering committee.
She responded to a claim that she had left critical exam issues to junior officers by saying necessary measures to secure exams were already in place.
The increasing verbal duels between supporters of Deputy President William Ruto and opposition leader Raila Odinga are degenerating into a veritable farce. If the politicians in the rival camps could listen to themselves, they would realise just how petty and ridiculous they sound.
This needless sabre-rattling by people the rest of Kenyans look up to for guidance is, indeed, hurting the statuses of both Mr Ruto and Mr Odinga. The words that have been flying between the two groups are, to say the least, quite beneath the stature of the two men, who have both made distinguished contributions to the country in their long political careers.
But the sorry situation is not being helped by the constant sniping at each other by these former allies-turned-bitter foes.
The DP’s allies’ insinuation that Mr Odinga is pretending to be a co-president is rather base.
But this whole acrimony is, interestingly, a reaction to Mr Odinga’s reconciliation with President Uhuru Kenyatta, which has largely helped to ease the political tension arising from last year’s highly divisive elections.
Sadly, the seemingly relentless exchanges between the two leaders’ allies are stoking the dying embers of a fire that had threatened to engulf the entire country.
The stark reality, however, is that this fight won’t, in any significant way, change the fortunes of both men, who are firmly rooted in their respective positions.
The DP and the former Prime Minister have a firm grip on their respective camps and should encourage mature political competition by reining in their belligerent allies.
The greatest folly of our politicians is to permanently engage in election campaign mode.
With the next elections nearly four years away, the politicians should give the country a break and channel their energies into tackling the numerous socio-economic challenges the people face.
The rise of artificial intelligence (AI) and automation has created anxiety about jobs being lost to robots; the Doomsday predictions are that developing countries such as Kenya will miss the development benefits of a manufacturing sector.
As a new Pathways for Prosperity Commission report shows, these technologies, while disruptive, could create huge opportunities for growth.
But we need to learn from previous disruptions and identify the areas of the economy where AI and other emerging technologies can drive growth. Most importantly, we need to prepare the workforce with skills and knowledge.
Kenya is unlikely to make advances in state-of-the-art AI or data science.
There are neither enough African institutions to teach and inspire people in these cutting-edge sectors nor jobs to attract them.
We do have, however, a deep understanding of the complexity of our local context and that knowledge is a crucial, and under-appreciated, element of innovation. Innovation must be applied to real world problems.
SEEK OUT POTENTIAL
We need to focus less on identifying current skills — although they are important — and more on seeking out potential in people steeped in the local context.
I have seen very skilled people from overseas struggle to adjust in emerging markets while local innovators with lesser skills would better tune into the context.
But the skills gap can be addressed.
True innovators thrive on freedom of thought; they learn and then deliver what it takes to succeed.
Yet, we need to be honest and pragmatic in assessing the current skills base. We cannot say we have data scientists just because we have people who can make graphs in Excel. And high school machine learning skills don’t equate AI.
‘REVERSE BRAIN DRAIN’
Innovative countries are always driven by a mixture of local and international talent; we need to balance between imported skills and space for local potential.
Unlike elsewhere, Africa has not seen the ‘reverse brain drain’ of skilled workers returning from technology jobs overseas nor had an influx of outsourcing centres that create large pools of skilled IT roles. We also do not have the same academic and venture capital ecosystems as in Silicon Valley.
We have to address this now.
Frontier technologies — from AI to virtual reality — could be a huge opportunity for Africa.
However, we need to adapt them to the local context and use them to spark scalable innovation on the ground.
It will take intensive national dialogues to lay the right foundations.
Governments have a big role in making this happen — in how they regulate and tax tech-based enterprises and foster skills and innovation.
There are insufficient incentives for companies to invest in research and development.
Local companies will have to step up.
We need to be future-proofing ourselves, creating a culture of innovation, experimentation and engagement so that Africa can thrive in a changing world.
Mr Bhattacharya, a former CIO of Safaricom’s Innovation Hub and CEO of Nairobi’s iHub, runs a global edtech start-up and is a commissioner for the Pathways for Prosperity Commission on Technology and Inclusive Development. [email protected]
The term of the pioneering members of the National Police Service Commission has ended and it is time to reflect on the performance of the organisation and make projections for the future.
By and large, the NPSC has made a difference in the police service, but we recognise that the impact is yet to be felt.
Essentially, the commission was created by the Constitution to take charge of the administrative and oversight functions of the police — bringing on board civilians to manage the service and, in a sense, give it a human face.
Establishing the NPSC was core to the reform agenda envisaged for the National Police Service, which, for years, had earned the dubious distinction of brutality, corruption, sloth and sleaze, and which required reorientation to accord to the spirit of the changed socio-political landscape.
To its credit, the commission made attempts at professionalising the NPS by enforcing competitive recruitment of top officers.
It undertook the vetting of top officers, a process that revealed deep rot in the service. Several unqualified and corrupt individuals who had occupied critical positions were replaced with suitable candidates.
However, after a while, the momentum ebbed and, in recent times, much has not been heard about the drive to entrench professional and ethical standards in the service.
Whereas in the initial years the NPSC flexed its muscles in terms of appointments and promotions, in latter days it was emasculated and the powers went to the Executive and the Inspector-General of Police. For example, the recent changes in the police formation were driven from elsewhere, with the commission seeming a hapless follower. Yet that was not the spirit of the Constitution.
We recognise that efforts have been made in the past few weeks to give the police a new sheen.
A new structure is being rolled out, uniform introduced and new arrangements for transport and accommodation made. Some are welcome, especially the welfare matters, which have been neglected for years and made the police service an unattractive employer.
Nevertheless, the service remains stuck in its old bad ways. Bribery is rampant. Brutality is prevalent. Only the other day, a report by the Ethics and Anti-Corruption Commission ranked the service, for the umpteenth time, as the most corrupt institution. More work is needed to transform the service as envisaged by the Constitution.
After six years, the commissioners have set the stage for changes but, apparently, the odds may have been stacked against them and they were, therefore, unable to make a visible impact. The new team to be appointed must rethink the strategy of carrying out the much-sought reforms to make the NPS a truly professional entity.
The High Court in Nyeri Wednesday struck out a petition filed by timber manufacturers challenging the government’s ban on logging.
Justice Jairus Ngaah ruled that the dispute should have been filed at the Environment and Lands Court.
“The dispute involves the environment, use, occupation and title of land. The jurisdiction of which falls under the Environment and Land Court as per Article 162(2)(b) of the Constitution. This provision of the Constitution strips this court of jurisdiction for which a special court, albeit of equal status, has been created,” said Justice Ngaah.
The traders had sued Kenya Forest Service (KFS), chief conservator of forests, Ministry of Environment and Forestry and the Attorney-General for imposing the ban on February 27.
They argued that the moratorium affected their income and that the government’s security agencies were harassing them by impounding processed timber in transit.
The traders included Nyeri Timber Merchants Association, Nyandarua Timber and Tree Planters, Kiambu Timber Manufacturers and Kirinyaga Timber Manufactures Association.
They wanted the court to compel the government to lift the ban.
But Justice Ngaah upheld the preliminary objection raised by KFS and the chief conservator against the suit.
The judge explained that the dispute was between a licensee and a forest manager, which can be resolved through procedures provided in the Forest Conservation and Management Act.
“Section 70 (a) and (b) of the Act prescribes the procedure to be followed. This section is clear that the first port of call is the lowest possible structure that may have been set up in the devolved system of governance,” said the judge.
The judge termed the petition defective for failing to follow the cited procedure.
Murang’a Governor Mwangi wa Iria is a man given to politically fruity language.
His comments that the the Northern Water Collector Tunnel is meant to benefit Nairobi and Kiambu counties to the detriment of his county enraged many.
However, Wa Iria’s ‘water tribalism’ is still useful, in that it signals a big issue of the future.
We can denounce him all we want but the reality is that, as populations balloon around Africa, and critical resources such as water are degraded by climate change and our abuse of the environment, we shall soon be killing one another over these things.
TRAIL OF DESTRUCTION
In Nigeria, in recent months, Fulani herdsmen and militants have left a trail of destruction in a conflict between pastoralists and farmers that, at base, is a fight over diminishing pasture — which is, ultimately, about water.
The conflict has killed thousands of people and some rate it to be deadlier than that which was waged by the jihadist group Boko Haram at its height.
In South Africa, as drought ravaged the country in 2017 and didn’t let up into the first quarter of this year, there was alarm that Cape Town would run out of water.
In a story that might not have caught the attention of the rest of Africa, MPs called for something unusual — the nationalisation of privately owned dams.
Apparently, South Africa has 4,000 dams, of which government owns only 350.
In that sense, part of the recent revival of the push to seize land — most of it owned by white South Africans — and redistribute it to indigenous citizens is all about water.
A similar situation started the anti-government protests in the Oromia region of Ethiopia in 2015, in opposition to the expansion of the capital Addis Ababa into their lands and investment in agriculture and flower production.
The ensuing crisis eventually led to the unprecedented resignation of Prime Minister Hailemariam Desalegn and the rise of the game-changing Abiy Ahmed earlier in the year.
Kenya is no stranger to these conflicts.
The series of ‘ranch invasions’ early last year in the Laikipia region by illegal herders that left several people dead and livestock stolen were part of a mini water war.
Early this year, in what Kenyan media nicknamed a “charcoal war between Kiambu and Kitui counties”, Kitui Governor Charity Ngilu enforced a charcoal and sand harvesting ban in her county.
Militant youths from the area burnt two vehicles ferrying charcoal from her county. In turn, youth from neighbouring Kiambu blocked the Nairobi-Naivasha highway after transporters who ferry charcoal from northeast Kenya closed the road, demanding the arrest of Ngilu.
The Governor of Kiambu, Ferdinand Waititu, sued Ngilu.
With forests cut down, wetlands long settled and rivers built over, the larger urban areas are running out of water.
Because the balance of power favours the vote-rich cities and regions, we are seeing more and more water being piped from far-flung areas to the large urban areas, leaving the out regions with shortages. In turn, the losers are being radicalised.
Why are we seeing these charcoal and water “wars”? For starters, because the long-running degradation of resources has now reached crisis levels.
Secondly, because there has been progress. The stereotypical ignorant villager of years gone by is a soon-to-be-extinct species.
Because of years of free primary school education, the majority of the young people hanging around the village yards and small town squares have some education.
Also, FM stations are everywhere. You will be hard put to find a place in Kenya, as elsewhere in Africa, where there is no local FM station There are small cheap FM radios that cost less than Sh1,000. And most basic phones can receive FM signals.
WANT THEIR SHARE
These rural areas that once didn’t make any political demands on the government in the capital city now do. They understand that when their forest is cut, someone in Nairobi grows very rich. They want their share of the cake.
Twenty years ago, the people of Turkana might not have asked for a share of the oil revenues from the wells in the area. Today, they fought like hell to get a cut.
It’s not unreasonable for a Murang’a nationalist to ask, what is the difference between the oil in Turkana and water in their county?
The response by Nairobi, which in recent months demolished several shopping malls because they were built on riparian land, was a water fight.
Nearly 4,000 properties are earmarked for demolition in Nairobi.
Iria is not a creature from the past. He’s the future.
Mr Onyango-Obbo is the publisher of Africapedia.com and explainer Roguechiefs.com. Twitter: @cobbo3
Talks between teachers and their employer hit a stalemate Wednesday after the Teachers Service Commission rejected a demand to revoke the transfers of 85 head teachers holding union positions.
The head teachers, who are members of the Kenya National Union of Teachers (Knut), were transferred outside their counties this year.
TSC also rejected a demand to have such head teachers exempted from future transfers, a move that saw deliberations on the issue pushed to another date.
This means that Knut will have to seek another meeting with TSC in order to discuss the issue of transfers but other matters will still be discussed in the remaining two days. The demands were made by Knut during the five-day talks on various issues affecting teachers which started on Monday in Naivasha and which end tomorrow.
TSC will Thursday hold make-or-break talks on promotion of more than 30,000 teachers who have attained higher academic qualifications after the parties failed to agree yesterday.
This is after it emerged that data from TSC indicates that only 400 teachers qualify for promotion while the rest have questionable academic qualifications.
Knut wants the teachers promoted based on academic qualifications but TSC insists this must be based on performance and availability of vacancies.
TSC Chief Executive Officer Nancy Macharia said in a statement that both parties had made significant progress and had reached a consensus on several issues.
“The commission took time to explain to the union the legal and policy framework governing the transfers of the 312,007 teachers in its employment. Even after explaining the policy and legal framework, which the union had approved through the signing of the CBA, the Knut officials were adamant and demanded an adjournment of the deliberations to a future date,” said Mrs Macharia.
Mrs Macharia Wednesday maintained that the mandate of the commission is to assign teachers to any public school or institution.
“Employees who hold elective offices in unions and saccos, among others, are primarily employed to teach and are bound by the code of regulations for teachers, which has provisions on transfers of teachers. Election to any office cannot, therefore, be used to irregularly amend the contract between an employee and employer,” added Mrs Macharia.
She said TSC had agreed to release 111 Knut executive secretaries to work full time for the union.
“This is not even a legal requirement on the part of TSC but an act of magnanimity to promote cordial relations. The union’s demand to exempt some elected officials from operational policies and regulations can only undermine provision of quality teachers and, by extension, quality education. This is not tenable,” Mrs Macharia said.
Knut Secretary-General Wilson Sossion Wednesday declined to discuss the issues.
“I have nothing tangible to report,” he said when asked about the latest development.