The Week That Was: Interesting Tidbits…

Here’s a quick recap of recent developments:

Latest on the Constitutional Amendment debate

“The incumbency has lost the power of deciding an election date. Now they want to get it back just one more time through the back door.” – Martha Karua, MP & Presidential Aspirant in 2012 Elections.

The Speaker of the National Assembly ruled that the Cabinet (through the Justice and Constitutional Affairs Minister) was within the provisions of the Constitution and Parliament’s Standing Orders to table the Constitutional Amendment Bill which seeks to change the general election date from August to December 2012. This Bill has already been tabled for the First Reading in Parliament.

Since Cabinet’s “logistical reasons” excuse for having Elections in December instead of August has failed to hold sway with us, they’ve now crafted a new reason. Listen to this:
“The Cabinet decided to seek a constitutional amendment to hold the elections in December because President Kibaki’s term expires on December 30, 2012. If the elections are held before that date, the country will not have a President and Commander-in-Chief because, legally, the President’s term would have expired.”

Meanwhile, Prof. Mutua in his weekly “Letter from New York” expresses a real fear that the on-going war against Al-Shabaab could be used to postpone the 2012 elections. He concludes by saying that Kenya’s war against Al-Shabaab is necessary and that’s why Kenya may have to postpone elections if necessary.

With due respect, any attempt to push General Elections to 2013 by invoking the President’s “unexpired term” or “national security” must be rejected in the strongest possible terms. We are aware that MPs, Permanent Secretaries and other high-ranking government officials whose Terms of Office, by and large, are tied to the Elections date would be more than happy to have elections in December 2012 or March 2013 or even much later. But what about the People of Kenya? All the People want is a peaceful, free and fair election – preferably sooner than later, yes?

Evictees awarded over 200 million shillings as damages for violation of their rights

“…The evictions were then supposed to be carried out in a manner that respected human dignity, right to life and the security of the affected…” – Muchelule, J., High Court.

In the case of Ibrahim Sangor Osman & 1,122 others v The Minister of State for Provincial Administration and Internal Security & 10 others [2011], Justice Muchelule sitting in the High Court at Embu has awarded a global sum of Kshs. 224,600,000/= to 1,123 ‘Medina Evictees’ as damages following their eviction from unalienated public land within the jurisdiction of the Municipal Council of Garissa. The court also declared that the petitioners’ fundamental rights as outlined in their petition had been violated by virtue of the eviction from the alleged public land and the consequential demolition of property by the respondents. Read the full case here.

As the dust settles on the Syokimau demolitions, we heard the news of the residents living adjacent to the Eastleigh Air Force Base, who had their flats demolished, to their utter shock and disbelief. It is hoped that this positive outcome from the halls of justice can be relied up by the residents of both Syokimau and Eastleigh as they explore options for legal redress from the State.

Speaking of legal redress…

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The Week That Was: Sepp Blatter and Uhuru Kenyatta Walk into a Bar in Syokimau…

As I step out briefly from the birthday festivities at the DR HQ, I do so to ventilate and share some quick thoughts on several events which have shaped this past week.

Depending on where you’ve lived in the diaspora or visited in Karen, hearing anyone trivialise racial discrimination isn’t something you take lying down. This clearly explains the public outrage and condemnation of FIFA President Sepp Blatter’s remarks that in the case of football, any racial incidents could be settled by a handshake at the end of a match. That would be like Francis Atwoli saying that ethnic and gender discrimination doesnt exist in the workplace and if you’ve been discriminated against, you should just hug it out with your employer or colleague and move on. REALLY?

But the thing about discrimination in Kenya in particular is that more people need to speak out against it so that we can move past labeling and stereotyping and start looking at each other as brothers and sisters working towards building one nation: Kenya. The problem especially with ethnic discrimination in Kenya today is that it is so entrenched in our every day life that it has become accepted as normal and in politics, we accept it simply as the modus operandi. This mindset must change. Do keep in mind that we have a Bill of Rights now that enshrines Equality, which means that if you’re ever discriminated against, you can now go to court and seek damages.

Moving on, Forbes Magazine claims that Uhuru Kenyatta, 2012 presidential aspirant, International Criminal Court suspect and son of former president Jomo Kenyatta, is the richest man in Kenya and 26th richest man in Africa. Does it not bother us to have one surname owning over 500,000 acres of land in Kenya? Okay, that was rhetorical. Frankly, I pray that Mr. Kenyatta never sees the inside of State House in 2012 (although he was born there 50 years ago) because I have a sneaky feeling that Kenyatta would be among those that oppose all broad-based land reform/land redistribution policies that would be made pursuant to the Constitution. All in all, I find it all very sad that he sits on all these huge tracts of prime land, most of it unused, yet we still have displaced persons living in camps all over the country while the government continues to deprive many more of land including the residents of Syokimau.

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The Audacity of Hope: Karua, Tuju and Post-2012 Kenya

“Hope – Hope in the face of difficulty. Hope in the face of uncertainty. The audacity of hope! In the end, that is God’s greatest gift to us, the bedrock of this nation. A belief in things not seen. A belief that there are better days ahead.” – Barack Obama.

About two years ago, Martha Karua made no secret of her presidential ambitions and after wilfully resigning from Kibaki’s Cabinet, she has been hard at work campaigning and drumming up support for her bid.
About two weeks ago, Raphael Tuju resigned from his cushy job as Special Advisor to the President and declared that he is offering his candidature for President of Kenya in 2012.

These two are among the growing number of Presidential hopefuls seeking to challenge the two descendants from the two big political dynasties Kenyatta and Odinga, along with the rest of the candidates vying for CEO, Kenya 2012.

As far as political campaigns go, I’m sure that the hopefuls are hoping their new faces and fresh ideas trigger an Obama effect that will inspire wide-scale, cross-boundary support from the electorate. Although Kibaki is certainly no Bush, presidential aspirants will target the failings of his two-term administration and hope to sell themselves as the Change Agent that the voters and the country seek. They will promise to slay the twin-headed dragon that is corruption and impunity, they will have you convinced that once they’re elected the economy will be revitalised, jobs will be created and basic services will be improved for all Kenyans.

That said, the Obama effect as we know it, is unlikely to work here in Kenya.

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The Political and The Legal Merge: Kenya’s Coalition Attorney-General

First off, let me just say that the nomination of AG should not be taken out of context merely because the Executive agreed on Prof. Githu Muigai. Kibaki is hardly the first President to nominate a “friend” or “ally” to the position of AG. In the US, John F. Kennedy nominated his own (inexperienced) brother Robert Kennedy who served as AG and let’s not forget Richard Nixon who appointed his Presidential Campaign Manager John Mitchell to be AG. The key issue in this nomination, to my mind, is one of merit. The next AG of the Republic of Kenya must be qualified, and extremely so given our complex legal history and forward-looking constitutional blueprint.

I think the questions Parliament need to ask themselves as they deliberate on whether to confirm Prof. Githu Muigai’s nomination as AG should all be aimed at answering the following key concern:

Does the AG nominee understand that the AG’s Chambers needs to be the voice for the rule of law in those close-door Cabinet deliberations and provide an honest appraisal of all applicable law even if the advice will constrain the Government’s pursuit of desired policies?

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Feeding the Commons: Creative Commons and Copyright in Kenya

“Feeding the commons is about ongoing effort. Releasing your work to as many people as possible gets you attention for the next thing you do. It’s so simple. It’s not about selling any one thing anymore, it’s about selling your stream.” – Adam Fields.

Recent studies show that the copyright industry contributes approximately 2.3% to our Gross Domestic Product and employs thousands of Kenyans involved in everything from music, film, book publishing, software development, visual arts, theatre etc. But Kenya has not even began to cash in on the enormous potential within the core copyright industries due to the ever-present and prevalent menace commonly known as ‘piracy’. “Copyright piracy”, as it is commonly called, is the unauthorised commercial use of copyright works and it is a crime under our current Copyright Act.

With all this in mind, iHub Nairobi recently organised a Session on Creative Commons (CC) in Kenya. CC is a nonprofit which has come up with six standardised copyright licenses pro bono for copyright creators so that they can offer their creative work with the freedom they intend it to carry. Using these licenses, a musician might allow his music to be used for noncommercial purposes (by kids making a video,for example, or for sharing among friends), so long as attribution to the artist is kept. Or a lecturer might permit her writings to be shared for whatever purpose, again, so long as attribution is maintained. Or a collaborative project such as a wiki might guarantee that the collective work of the thousands who have built the wiki remains free for everyone forever. In short, whereas Copyright says “All Rights Reserved”, Creative Commons says “Some Rights Reserved”.

Supporters of Creative Commons argue that we live in an age of information overload where endless amounts of information is freely accessible from the internet. However, this culture of openness fostered by digital technology doesn’t mean that creators can’t make money from the sweat of their copyright work. The assumption made by advocates of CC is that the both entrants and major players in the copyright industry will at one stage or other want to showcase some of their work to the public for free so as to promote themselves and attract followers and fans. Therefore Creative Commons allows the creators/ artists to be free to choose how best to license their work arguing that copyright was meant for authors, and that authors should have the control over their copyright.

And with that out of the way, I have just five comments to make about this whole Creative Commons:

1. Creative Commons Licenses falsely presume authenticity:
Just because I put a creative commons license on my blog or my website or my flickr page, that doesnt mean I own the work that is available on those sites. Whereas our Copyright Act specifically requires that all copyright holders willing to register their work must formally apply for registration and submit original copies of their work for verification before it can be registered.

2. Creative Commons Licenses are cast in stone:

Any person who has once legally acquired a copy of a creator’s work under a certain CC license continues to be free to use this copy according to that license even if the creator withdraws the work from the CC system. In short, CC licenses are irrevocable which totally deprives the creator’s ability to enjoy the rights to his/her by altering or modifying the terms of any CC license.

3. Creative Commons system is falsely premised on goodwill:

Kenyans love freebies. The argument that you can offer up a few of your songs for free on one occasion to lure fans then later release other songs for sale is flawed. Can artists and musicians, online writers and photographers continue offering their hard-earned work for free in the hope that one day they’ll be able to cash in on their acquired fame so as to be in a position to get willing buyers for their work? I think not. Well, atleast not always.

4. Creative Commons Licenses are impossible to enforce:

Look, we already have problems fighting piracy of tangible copyright work eg. music CDs, movie DVDs, textbooks, etc. How will Kenya be able to enforce copyright in digital works? Which provisions of the law will our learned prosecutors rely on in court? The Communications Act is silent, the Copyright Act is silent, the Constitution is vague, at best. Aside from not having the requisite legislative framework for protection of digital copyright, the Creative Commons system itself doesn’t make provision for enforcement mechanisms. So basically, if someone violates any of the terms on the CC License on your site, your only option is to spend your money engaging a IP lawyer to sue for damages.

5. Creative Commons License Porting presents challenges

As I understand it, CC Licenses were conceived with the US Copyright laws in mind therefore for them to be comprehensible and enforceable in our jurisdiction, the CC licenses have to be ported. Porting means that a bunch of volunteers will sit down and harmonise the CC licenses with our Copyright Act.
Other than the logistics, the main challenge I see is that we have an archaic copyright law which would greatly restrict the meanings in the CC licenses.eg. drawing a distinction between between “commercial” and “noncommercial use” of CC licensed work.

So, if someone can clear up these issues/concerns for me, I’ll be all for CC. But as reiterated earlier, I think Kenya is neither at a stage where copyright enforcement is so stringent and excessive that creators want to free up some of the rights to their works nor has the Kenyan market evolved to the extent that copyright creators can rely on goodwill from music user and consumers to enjoy freebies but still be willing to go out and buy the original work once produced. I may be just speaking for myself and maybe I’m speaking for you too, no?

Note: Today, Wednesday 10th August from 2pm, iHub Nairobi will be hosting a Session on Intellectual Property and Creativity. I hope to raise some of these CC issues including other IP and Copyright issues I’ve raised previously here and here. All are invited.

The Ugly Side of the First Lady Syndrome in Africa

“Macbeth: If we should fail —
Lady Macbeth: We fail!
But screw your courage to the sticking-place,
And we’ll not fail.”
– Shakespeare’s “Macbeth”, Scene VII

Political Science 101: power is the capacity to make others do what they would not ordinarily do. Often described as the power behind the throne, First Ladies are well positioned to either build or destroy a nation by virtue of the power they wield over their spouses. In my earlier piece on Last..err..First Ladies in Africa, I focussed mainly on their instrumental role as peace-makers and advocates of change. A role which many of our First Ladies have not taken up and as a result, they are also blamed for the failures and short-comings of their husband’s rule.

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