President lacks good political, legal advisers

Following the long and monumental ruling by the five-judge High Court bench on the BBI process, and by extension the legacy project of President Uhuru Kenyatta, one thing stands out: He must go out of his way to look for sober, uncompromising and intelligent political and legal advisers.

Even though the substance of the judgment is debatable, what is not in question is that Kenya, unlike many developing countries, enjoys a highly independent Judiciary. A Judiciary that can call the Executive's bluff without worrying about the consequences, bearing in mind it is the latter that practises what Max Weber refers to as the monopoly of violence.

The merits of the case notwithstanding, one pertinent issue we must look at is the quality of advice the President receives from his political and legal advisers as well as Cabinet secretaries and other state offices.

Apart from the Attorney General, whose legal advice to the Presidents seems to fall short given the number of directives and moves that have been declared unconstitutional, there seems also to be some State House spin-doctors misadvising Uhuru on the 2022 election. They have been manufacturing the unpredictability and confusion in the country, even before the High Court ruling.

These spin-doctors, from what we see, have overtly and covertly hijacked the President’s succession plan by erroneously using intellectually stimulating arguments to champion their ulterior motives. Let me explain.

Politics is a science as much as it is an art. Therefore, one can use tools, methods and theories to make hypotheses and create scenarios of what might possibly happen in the future. Using this knowledge, these spin-doctors have secured their seats at the front row of the ‘deep state’ arena. On their report card are the predications regarding elections of 2007 and 2013.

In 2007, the then State House spin-doctors had their way, albeit with monumental failure. For that reason, we experienced violence, and power, ultimately, had to be shared.

In 2013, some of the current spin-doctors came up with a theory, accompanied by intellectually stimulating arguments, on how Uhuru and Ruto would win the presidency. This was the basis of such hypotheses as the tyranny of numbers, among others, that worked to their advantage.

They have now regrouped and with the use of the 2013 political tools, they want Kenyans to believe that “if it worked in 2013, it can work in 2022.”

This is called the gambler's fallacy. The fallacy exposes the stupid imagination that since you won a gamble last time, you will always win.

Like many other sciences, politics is not always that predictable. And this is simply because politics is undertaken by human beings who are also unpredictable.

On the other side, the Attorney General either fears the President or he’s just not giving sound advice on the law. Amos Wako understood politics and law. The current AG has a good understanding of the law and good English. You cannot help but admire his flawless diction. However, his understanding of the application of the law, especially in politics, seems wanting.

An attorney general should not be a yes man. Neither is he a spanner boy of the President. His or her job is to advise the President on the legal consequences of their actions. The job of the Attorney General is speaking law to power. 

I must end by reminding the President, and indeed anyone in a position of authority, that when you have a chance to give someone a job, look for people with capacity. Majority of the leadership and governance problems we have all boil down to this single issue: Appointments. We live in a country where you can always guess who might get a powerful and influential job. The suspects are always the same. And it’s painful.

I hope the court ruling, even if overturned, serves as a lesson on this.

Political scientist. [email protected]