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Foreign Trade Policy in New World Order

By Ndung’u Wainaina

On April 5, 2013, I wrote an article “The Fallacy of Going East: Can it Replace The West”. The article highlighted the distortions of information regarding trade and investments between China, European Union, United States of America and Japan with Kenya. It demonstrated that Kenya’s core export destination of its products outside East Africa countries is Europe and United States.

These countries also have large investments and support critical social service sectors like education and health that provide significant job opportunities to many Kenyans. Kenya has to expand and deepen its trade relations with these countries while seeking new frontiers especially from emerging economies of China, Brazil, India, Turkey, Mexico and South Korea.

The East Africa’s total exports to China and India, which are often depicted as two important trading partners, is less than 2%. This is extremely unfair. Economic growth is necessary, but not sufficient in order to achieve development.

Africa desperately needs technological and engineering revolution, transformation of systems, processes and procedures for trade and investment, and developing technical capacities for effective intra-regional cooperation and integration to deepen trade, productivity opportunities, and economic diversification.

With the rise of emerging economies like India, China and Brazil, the challenge is “maintaining and strengthening the current international rules-based order that has underpinned global strategic stability and economic growth” while being alive to changing global dynamics. The emerging big economies must become “more responsible global stakeholders shouldering their share of global obligations”.

Africa is still far below its rightful position in the global economy looking at its size, population, and resource endowment. It is largely made up of low and lower middle-income countries. The GDP per capita growth rate generally follows the growth rate of commodity prices and disparities are highest after Latin America. African countries rank poorly in the rule of law.

Poor governance and leadership, fragility and inequities remain a major bane of Africa. The increasingly multi-polar global economy, competition for finite natural resources and oil, aging world, innovation and technological advancement, climate change and Africa’s larger population are major factors working favorably for the continent.

There are two levels of power transformation taking place simultaneously globally. There is transformation of power among the states, and the power shift to the non-state actors. The importance of civil society networks is rising exponentially.

In the new world order, global institutions must reform to create a new system of cooperation, which is more predictable, effective, and wide reaching. Global institutions remain appropriate if the allocation of decision-making authority within them corresponds to the changing distribution of power.

The United States of America’s domestic economy has been struggling to remain competitive. However, USA is still a strong global power with leadership in the field of global financial system and research innovation. In the global space, USA with close to 58 allies is changing its foreign and security policy. It is decreasing military footprint on the ground investing more on the deployment of sophisticated technology devices in pursuit of her security policy and developing capacity of allies.

The USA’s foreign trade and economic policy is focusing on the geo-strategic controlling of important regions like South Asia-Pacific (US Pivot to Asia initiative). It is keen on successful negotiation and implementation of three trade treaties namely Transatlantic Trade and Investment Partnership (TTIP), Trans-Pacific Partnership (TPP) and North America Free Trade agreement( USA, Canada and Mexico) forming the world's biggest trade deals with huge ramifications. The USA trade and economic strategy for Africa has four components namely Trade Africa, Light Africa, Africa Young Leadership Initiative and AGOA.

The United States key allies, European Union and Norway have quietly and steadily been developing trade policy tools to facilitate their effective adaptation to the changing world based on “the principles of multi-lateralism, anti-militarism and rule of law to attract partners”. They have taken lead in new sustainable environment friendly economic development initiatives and green energy collaborative efforts. EU countries are keen on strengthening their trade and financial markets even as they look elsewhere for uptake of their goods. The EU still speaks with a powerful, constructive voice on human rights and democracy. On Africa, Economic Partnership Agreements between European Union and Africa where the Union is offering “tariff-free access to Europe's markets” in return countries would “open up their markets to goods from the EU” for is stuck

Japan is focusing more on consolidating world peace and security as the key driver of its economic interest. Her policy towards Africa is built on the twin principle of “ownership” and international “partnership” for strategic “private sector-led growth,” “promoting human security” and “South-South cooperation.”

The Chinese foreign policy always comes second; domestic policy first. China’s global priorities are shaped primarily by domestic economic and political imperatives. Former United States Foreign Secretary Henry Kissinger notes China is “a country facing such large domestic tasks, is not going to throw itself easily into strategic confrontation or a quest for world domination.”

China, with a mixture of a developed and developing economy, is keen for cooperation with other major powers to aid its core national objective of completing the economic modernization task. China identifies Africa as an alternative source of energy and raw materials essential for the continuation of her economic modernization. China has just funded the construction of the new Africa Union headquarters exclusively from its own resources.

China wants to ensure sustained access to global markets and boosting domestic consumption as driver of its own economic growth. In contrast with American, China will only play a greater global role with a lens of its own national interest.

For EU-China relations, despite the high-level political dialogue, to China, the EU seems to be primarily an economic power, not a global military-political power. There will be more China-EU trade agreements as China feels excluded from the big trade partnership.

Writer is Executive Director, International Center for Policy and Conflict: This e-mail address is being protected from spambots. You need JavaScript enabled to view it



Tuesday 25th June 2013.

The International Center for Policy and Conflict finally released its shadow monitoring report of Kenya’s Truth Seeking processes. The report titled Concealing the Truth to Reward Impunity: A critical Analysis.

The Launch marked the end of a journey that ICPC has travelled since the year 2008 when it began its engagements on Truth Seeking processes in Kenya. ICPC also went ahead and played a critical role in critiquing and informing processes around the formulation of the Truth Justice and Reconciliation Act. In 2009 the Center conducted major advocacy around the recruitment of the commissioners and made recommendations around suitability of certain commissioners. Later, ICPC began its monitoring project of Truth Seeking Processes in Kenya and through its grass root partners, monitored the activities of the Truth Justice and Reconciliation Commission (TJRC) in various counties and at the national level. The culmination of these engagements and monitoring is the Shadow report.

The launch was opened by ICPC’s Deputy Executive- Director Paul Mwaura who made opening remarks by giving an over view of the process of truth seeking in Kenya and the various interventions by the Center. He then yielded the floor to the Executive Director who read his speech. The main message that he put across in his speech was that of reconciliation and accountability through prosecutions of culpable individuals. He observed that “To such victims reconciliation is an empty word; they feel they are being ridiculed. The culture of impunity constitutes a serious disregard for the dignity and rights of the victims. The people of Kenya have gained the impression that the treatment being meted out is unequal”.

He concluded by stating that even though the official TJRC process is over despite the glaring flaws it would only be appropriate for the relevant government agency to release the report as it is part of Kenya’s official public records . It is the right and lawful thing to be done in accordance with the TJRC Act.

He concluded by saying that The TJRC was expected to be the coalescing platform for Transitional justice agenda in Kenya. However, it has taught us that Kenya’s political elite remains uncommitted to credible and independent transitional justice processes. The elite usually capture legitimate processes and then manipulate them. It has emerged that state influence on these processes is negative. Civil society remains the vanguard of creating, driving and implementing serious transitional justice processes and another lesson flowing from TJRC process is the positive and important role of international actors in promoting credible transitional justice processes in the absence of political will at the national level.

Dr. Thomas Obel Hansen was the next Speaker who run the participants through the various sections of the report. He begun by outlining the methodology of the report and the whole monitoring process. He noted that the report looks at the antecedents to the process and the entire process. The process involved desktop research, field studies, data collection during the statement taking and hearing process. He also described the structure of the report which starts with an Introduction, the Concept of a Truth Commission, an Overview of Kenya’s TJRC, the main body of the report which focuses on Analysis and Critique of Kenya’s TJRC and the processes of Truth Seeking, the Context of the TJRC. He concluded by stating that the report concludes that TJRC presented an window of opportunity for addressing some of the Central causes of human rights abuses and injustices in Kenya. The opportunity was lost in many aspects due to the political context in which the commission operated in. The Country needs to invest in solutions to achieve a more peaceful and just country.

The Last and Speaker and Key Note address was from Betty Murungi former TJRC Vice Chair Person and Commissioner. She made several observations on the process and the various challenges that they were facing. She noted that the government first starved the TJRC of funds, seconded officials who were suspected to have been intelligence operatives declined requests for information most of the documents that the commission ever used were obtained through extra legal means. The tribunal that had been also set up to investigate the Chair Person was also sabotaged before it even begun its work since their term ended and was never renewed.

She remained optimistic that there are positive aspects of the TJRC report that can be salvaged. She posed the question why nobody was going to court to demand for the original report that was ready by 3rd May 2013. She also welcomed ICPC’s observation on the process and noted that it was a positive contribution to the discourse. She recommended for civil society to engage in the budget making process to ensure that there is allocation of funds for implementation of the TJRC Report recommendations.

The Launch was concluded by the unveiling of the report. This was presided over by the Chief Guest Ms. Betty Murungi and ICPC’s Executive Director Mr. Ndung’u Wainaina.

This summary is compiled by Juliet Kamau who is a Lawyer and the Assistant Programme Associate at the International Center for Policy and Conflict.

Lack of Enforcement of Laws major threat to a Clean and Healthy Environment

Today June 5 2013 marks the World Environment Day, a day that has been set aside by the United Nations Environmental Programme on the need to take positive environmental action. This year’s theme is Think Eat Save. Everyone is encouraged to reduce food wastage and loss to reduce the every individual’s food print. The UN Food and Agricultural Organization says that 1.3 billion tonnes of food is wasted the irony of it all being that this amount of food lost is equivalent to  the amount of food produced in Sub Saharan Africa  with Kenya being no exception .

Every year the country experiences floods and later severe drought spells undermining food production leading to starvation among sections of the citizenry. This points to poor management, forecasting and contingency planning on the part on the part of the government. Plans need to be put in place to mitigate against adverse climatic conditions and to prevent environmental degradation.

This year’s Environment day comes at a time when the Constitution is facing serious challenges in its implementation more so Article 42. This article entitles every person to a clean and healthy environment. This includes the right to have the environment protected for the benefit of present and future generations through legislative and other measures. Chapter five of the Constitution focuses on Land and Environment since it is the source of life for all Kenyans. The Environmental Management and Co-ordination Act in section 3 also echoes word for word the provisions of the Constitution by giving every person in Kenya a clean and healthy environment. Any person is also entitled to move to court to enforce their right to a clean healthy environment in accordance with Section 4 of the Environmental Management and Co-ordination Act and Article 22(1) when their rights have been violated. The Judiciary has also established a court to adjudicate specifically on matters of Land and Environment.

Almost three years down the line the status quo remains the same with the Country having no effective waste management systems in many of its urban areas. The Urban and Cities Act in section 5 it describes a city as a having capacity for functional and effective waste disposal. The deplorable environmental conditions at public places poses serious health risks to the public thus undermining the constitutionally guaranteed right to life for all persons. Raw sewer emitting freely by the road side next to the Muthurwa Housing Estate, the illegal dumpsites along the Muthurwa and Marigiti Market and in Mombasa City at Kibarani area between Makupa causeway and Changamwe roundabout, Kisimani-VOK along the Malindi Highway area are just glaring examples of the state of neglect and degradation the environment is facing. Our country still continues to experience illegal loggings leading to the sharp decline in our forest cover which now stands at between 5 and 6 % the country needs to work extra hard in order to attain the recommended 10% .

In low income residential areas every person has to become accustomed to a fashioned walking style to evade the massive pools of what are clearly not fresh water streams. This can be attested by the statistic that about 70% of people in Nairobi live in deplorable and squalid environments especially in the informal settlements. If we were to strictly adhere to the conditions stipulated in the Urban and Cities Act then Nairobi and Mombasa would not qualify to be called cities as clearly their waste management systems fall way below the mark. This continues to occur under the watchful eye of the National Environmental Management Authority. This Statutory body is funded by tax payer’s money yet it fails to effectively carry out its mandate.

The law is very clear and seeks to punish those caught polluting the environment through the polluter pays principle. The principle means that the cost of cleaning up any element of the environment damaged by pollution, compensating victims of pollution, and cost of beneficial use lost as a result of an act of pollution and other costs that are connected should be paid or borne by the person convicted of pollution. This notwithstanding there has been no prosecutions in our courts of perpetrators found to be polluting the environment or any compensation for victims of the same.

The recent demonstrations in Istanbul Turkey to save a park from development by their government reminds us all that all persons need to remain vigilant and demand protection of their environment by the government .This reminds every Kenyan to be thankful for the likes of the Late Prof. Wangari Maathai who stood her ground and fought plans by the Moi regime to put up a multi storey building at Uhuru park setting the standards of environmental preservation so high.

As we move towards devolving our governments bringing services and power closer to the people there is need for more awareness at the County level on the need for the protection of the environment. This is in cognizance of the County government in Schedule 4 of the Constitution being given the role to provide refuse, waste disposal services together with the all important role of control of pollution.

There is need for revision of the Environmental Management and Co-ordination Act to ensure that it is in line with devolution in order to have harmonious coordination with the various county governments. NEMA needs to give a clear strategy on how it plans to devolve its services to the counties in order to have a clean and healthy environment at the Counties. There needs to be constant public information and awareness on the environment, the duty bearers and the enforcers to avoid the constant shift of blame between NEMA and County governments.

The county governments need to come up with agricultural policies that reduce food wastage in order to have more food security. This will protect the people from the freedom of hunger and want and ensure sustainability of economies by increasing sources of county revenue through increased agricultural activities. The time is now we must all remember the duty to protect our environment starts with us for the sake of our current and future generations.


Juliet Kamau is a Lawyer at the International Center for Policy and Conflict ICPC.


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Whats your excuse?

Every day our media stations are dominated with politicians campaign trails and promises to Kenyans on what they will do once elected. But have you sat back and thought through it all?

Take prime minister Mr. Raila Odinga, he is in the government, second to the president, meaning he as the presidents own the current government, so how come he is promising changes and reforms which he is not implementing now?

Mr. Uhuru Kenyatta is the deputy prime minister so is Mr. Mudavadi, are they not the government? What have they done now in this government that makes them promise Kenyans things when they are in “their government”?

Mr. Ruto, Peter Keneth, Eugine wamalwa areor were ministers in the government, what have they done(did do)  in their ministerial positions to grant them rights to promise Kenyans reforms? If you cannot spearhead a change at a lower management level will you manage at a bigger level?

This is not a political statement trying to campaign for any candidate but a meditation piece for Kenyans to realize that the crop of politicians do take us as dimwits who cannot think beyond individual sense to reach common sense.

It would be reasonable for the candidates outside the government to make promises since they haven’t been in positions to implement or advocate for any positive change.

Any laws, reforms agenda and bills drafted or passed has been through these politicians promising us a different life once elected. But are we so blind to see they are responsible for our current congeliated systems? Are they not the reason we butchered each other in the aftermath of the last general elections?

What has changed? Do you think just because they are sitting down and dining together the people at the grass roots are doing the same? If their alliances do not work will we not be forced to taste a worse state of violence than we had?

A question one never asks, are we the only nation to have many ethnic groups? Of course not, but rather than embracing our cultures as a stronghold for norms and morals, the same individuals makes us believe it is the source of violence and other  acts of injustices, but is it? Why wouldn’t I stand proud to belong to a certain tribe?

When are going to realize that we have been brain washed so as to turn against each other in benefit to the same persons? Ever asked yourself what really changed after the massacre that followed the general election of last? Did any of the people we were championing for lose a family member, wife, husband, child, brother or sister or personally suffer any harm? Or who were faced to live without their loved ones once they suffered horrible deaths, forced to bury our own who died before their time?

Why is it that none of them calls for a reflections of past injustices, search for truth or advocate for justice to be implemented?

We as Kenyans have been changing individuals other than the system, subjecting ourselves to the same kind of corrupt government practices, failure to honor human rights and rule of law by the same individuals.

It is time to say enough and enough, stop letting these politicians in our places of worship to preach hate and peace at the same time, let them come as part of congregations and politic after. Let them address their past before they can promise us about the future, let them acknowledge their failures which they are allowed to have, they are also human.

But this is about us Kenyans, are we going to subject ourselves to the same or are we going to advocate for systems that are going to change our lives??

Time is now!


Court ruling on Matemu shut door for those with Integrity Questions

By Ndung’u Wainaina

A landmark judgement of the High Court of Kenya disqualifying Mumo Matemu from heading the Ethics and Anti-Corruption Commission is one of the bright shades in an otherwise politically polarised year.

This ruling made three critical determinations: It reviewed the powers of the Judiciary toward the actions of Parliament and Executive demarcating the separation of powers of three arms of State; asserted role of courts in reviewing appointments made by the Executive and Parliament; and completely settled the integrity or suitability standards to hold public office. The ruling dealt a fatal blow to the watered down Leadership and Integrity Act 2012 passed by Parliament. The judges strongly indicted Parliament and Executive for lack of judicious rigour and thoroughness in performance of public duty.

Reprehensibly disgusting individualistic interests in the Executive and Parliament have dominated the year 2012. Individuals expected to hold public office and act in trust have been callously deploying retrogressive hurdles to frustrate public interest. It has also revealed worrying levels of overrated sense of self-importance where despite clear guiding constitutional principles and values, and public outcry the Executive and Parliament have collectively demonstrated little sensitivity.

The fatigued route taken has been to justify procedure over substance in purported compliance with the Constitution. Right from the sacked judges who despite being deemed unfit for office months ago and even losing their appeals, still unjustly draw their salaries partly because for some weird reasons, the President has refused to gazette their sacking. The refusal to withdraw ‘County Commissioners’ and the disguised postponement of police reforms when insecurity is at its peak, cap the year when every conceivable reason has been advanced to slow reforms.

For Parliament, I will not waste my time to enumerate its countless efforts to entrench impunity. It has proven to be the national hallmark of shame and embarrassment as MPs’ desire for self-fulfilment comes first to national patriotism. In all these situations, the erroneous assumption is that the individual nominees to public offices and/or public servants do not have corresponding duty to withdraw their candidature or position honourably allowing the country to move on. In fact, individuals cling to office defiantly raising questions on their fitness to serve in public office. In recent history, only Justice Smokin Wanjala had the audacity to leave KACC honourably.

On the political scene, we have purported presidential candidates contesting the presidency despite having international criminal charges being formally confirmed against them. Many others join them across all parties with known corrupt backgrounds and some currently facing all sorts of investigations and criminal prosecutions.

The common denominator in the examples above is the artificial quagmire of finding a balance between ‘individual rights’ and ‘the public rights/interests’. Article 50 (2) (a) of the Constitution guarantees ‘presumption of innocence’ whatever the circumstances. It also sets limitations on situations where the ‘public right’ to a leadership of integrity, honesty and unshaken probity is superior to ‘individual right’ dictated simply by personal aspiration to assume certain public office.

In the Matemu case, the judges had this to say on ‘presumption of innocence until proven guilty’; “Kenyans were very clear in their intentions when they entrenched Chapter Six and Article 73 in the Constitution. They were singular aware the Constitution has other values such as the presumption of innocence until proven guilty. Yet, Kenyans were singular desirous of cleaning up our politics and governance structures by insisting on high standards of personal integrity among those seeking to govern us or hold public office”.  It is therefore grossly repugnant to insist on having unbridled right to contest or be appointed to an office in the public service even with unresolved ethical and integrity issues. It is a clear signal of lack of regard for the Constitution and reputation of the country, and respect for the people of Kenya. Upholding and adhering to the principles enshrined in Chapter Six is an obligation. I have argued severally, sometimes on the face of misdirected threats that the country cannot afford to trivialise questions of integrity if it wants to realise economic goals. However, many have chosen the palliative convenient path of ethnic bigotry.

In setting aside Matemu’s appointment, the Judges declared “ our mind, therefore, a person is said to lack integrity when there are serious unresolved questions about his honesty, financial probity, scrupulousness, fairness, reputation, soundness of his moral judgment or his commitment to the national values enumerated in the Constitution”.

To show seriousness they emphatically concluded ‘...In our view, for purposes of the integrity test in our Constitution, there is no requirement that the behaviour, attribute or conduct in question has to rise to the threshold of criminality. It therefore follows that the fact that a person has not been convicted of a criminal offence is not dispositive of the inquiry whether they lack integrity or not.’

The judges could not have been more accurate on the overriding values of the country. It is a position already practiced in all major self-respecting democracies where people withdraw at the slightest credible attack on their character. Of importance is the fact that the judgment challenges all public institutions to embrace national ethos and stand by the Constitution.

The IEBC must stand up and defend the Constitution as its duty to the country. Commissioners are bound by the Constitution and do understand the country’s history and desire for clean politics.  They certainly know that Kenya belongs to all of us and none has unqualified birthright to any office. The unequivocal public condemnation and reactions to Embakasi MP’s outbursts firmly confirm that majority of Kenyans already crossed the line in upholding Chapter Six.

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