Learning Kenyanese

From Studio Booth to DJ Booth - Part 3: Required Viewing

noreply@blogger.com (willpress) — Tue, 22 Jan 2013 13:47:00 +0000

*CLICK HERE FOR PART 1*
*CLICK HERE FOR PART 2*

I wish to conclude my end of the copyright debate with two documentaries highlighting the current state of copyright law in more developed areas of the world and how it is turning into a menace rather than a well intentioned cause to develop wider society and at the same time benefit the creators of intellectual property.

RiP: A Remix Manifesto features the popular mashup artist/DJ Girl Talk as a case study of the state of copyright and the madness that has infiltrated the music licensing industry around the world, while at the same time building its case for "The Remixer's Manifesto" - four key talking points that the documentary's creators try to justify.

Everything Is A Remix explores the concepts of creativity, originality, intellectual property and copyright on a much wider scale but in four very brief parts that are nonetheless very informative.

There you go. Enjoy. Discuss. Comment.

From Studio Booth to DJ Booth - Part 2: Questions for CMOs

noreply@blogger.com (willpress) — Tue, 15 Jan 2013 09:35:00 +0000

*Click Here For Part One*

In this long overdue second part of this blog post, I sent the message below to MCSK and KAMP for their input. The post will be updated if/when they exercise their right of reply. Anyone else can weigh in on the comments section as soon as now. Here's the message below:

Hallo there, MCSK, KAMP and PRiSK

I have some inquiries to do with your music performance licensing regime with special focus on DJs for a blog article I am working on. They are laid out in seven parts as follows:

1. Sufficient Authorization
Currently, the kind of relationship between artistes and DJs in Kenya is that which the DJ is an integral, almost indispensable part of the music distribution and publishing system. We are well aware that artistes periodically send DJs copies of their work for the sole purpose of being played during the DJs' performances in public at clubs, concerts, public gathering and even for broadcasting in radio shows, podcasts and other media. Does this practice count as sufficient authorization from the artistes to use those works in public performances according to the Copyright Act? If so, why would DJs who perform using music supplied by the copyright owners for the purpose of public performance need to obtain music performance licenses? Is this reality reflected in the rate of the fees imposed for obtaining a license for music performance?

2. Music Videos
In my opinion, a number of complications arise when analyzing the copyright implications for music videos according to the Copyright Act. Reading the interpretation clause (Section 2) of the Act, the closest description to a music video is an “audio-visual work” which is described as follows:

“audio-visual work” means a fixation in any physical medium of images, either synchronized with or without sound, from which a moving picture may by any means be reproduced and includes videotapes and videogrames but does not include a broadcast;”

In light of this, which CMO is responsible for monitoring the performance of audio-visual works in public settings? This is an important question since DJing has evolved and the sub-sector of the Video Deejay (VJ) who performs music videos as opposed to the original musical work.

The second complication arises in the language of that particular section of the Act. Audio-visual works are interpreted as being fixated in a physical medium (videotapes, CDs, DVDs etc.) Does this imply that music videos that exist “in the cloud” on sites such as YouTube do not fall under this category? If so, does this mean that if we apply strict interpretation of the Copyright Act and restrict audio-visual works to those confined in physical media, then a VJ who performs using only videos ripped from YouTube or other video-sharing sites without a license of any sort is not infringing copyright?

3. Royalties Distribution
Royalties allocation is normally a straightforward affair in scenarios where musical works get airplay, are downloaded in their original form or as ringback tones etc etc and the related data is well-documented. However, I am more interested in scenarios where distribution of royalties can get complicated. Take for example distributing the royalties from venue owners of club/discos or concerts - Of course, the ideal situation is whereby only the copyright owners whose works are used in the performances should benefit. Without a system of determining which specific works are used in performances at such venues and how many plays they get in the period for which royalties were collected means that those whose works are not used stand to gain unfairly. How do you work around that challenge to ensure that deserving copyright owners get their dues?

4. Open Data?
The resources available to the public such as forms, rates for various types of licenses and elaborate FAQs sections are much appreciated. However, I would also like to imagine that there is still a wealth of data in your hands that can be made available. For instance, it would be interesting to make the raw data of the royalty earnings of your members/members of other collaborating CMOs in a given period. I believe these types of data sets can be beneficial to your members in terms of promotion, opening up new opportunities and even expose those who are still up and coming in the industry. What's your take on this?

5. Tainted Copyright
Kenyan producers and artistes do not shy away from infringing copyright themselves in the process of creation of their musical works in varying degrees that range from light sampling to practically lifting an already existing musical work in its entirety and passing it off as an original work instead of a derivative work. You do not have to search very far for examples: I seriously doubt that P. Unit cleared with Island Records/Mango Records to use the popular 90s Bam Bam riddim for their new track You Guy (That Dendai). The instrumental portion of Rabbit's critically acclaimed single Swahili Shakespeare was entirely lifted from Sad Romance by Ji PyeongKyeon without even as much as an acknowledgment of the original work. Black Duo's Rap Kwa M.I.C. - considered a local hip hop classic by all standards – heavily plucks its instrumental content from Chaos by Talib Kweli, Hi-Tek and Bahamadia off the 1999 compilation album Soundbombing II.

Anyone is therefore justified in questioning the utility of dishing out royalties for such works with tainted copyright. If creators and eventual owners of copyrighted works do not adhere to restrictions against infringement on other works, why should they benefit from the levels of protection and licensing their works are currently enjoying? Where do CMOs stand in this ironic situation?

6. Venue Owners/Event Owners vs. DJs
I believe the mischief being guarded against when imposing music performance licenses is to ensure the party responsible for or gaining from the public setting in which music is performed gives copyright owners of the music used their due. The DJ (if he or she is not the event/venue owner at the same time) merely facilitates the performance of the musical works. The relationship between the DJ and the venue/event owner resembles that of the employee and employer in tortuous claims. The liability for failing to obtain a license should therefore lie squarely on the event/venue owner, in my view, more so since they are those who stand to gain more as opposed to the DJ. This should make practical sense across the board with very few exceptions. Why then have you adopted the policy of falling back on the DJ when the event/venue owner fails to obtain a license? Doesn't imposing some monetary penalty on the event/venue owner solve that problem instead?

7. Flat Rate for Licenses
Is flat rating the fees for obtaining music performance licenses for DJs reasonable given that this sector of the music industry is not balanced, with a huge gap between the top-earners and the up and coming DJs in terms of income generation? What are the complications surrounding alternatives such as a tabulated fee rate system where one pays according to what one earns?

I am very interested in getting your point of view on these issues.

Regards,

WP

From Studio Booth to DJ Booth – Part I: DJs Scratching Their Heads over Music Licensing

noreply@blogger.com (willpress) — Sun, 18 Nov 2012 18:59:00 +0000

The extremely heated debate as to whether Kenyan DJs should pay for public performance licenses when performing in public has been raging for a couple of weeks now – local artistes, local DJs, the organizations mandated to issue the licenses and interested stakeholders have been at it, each voicing their interests everywhere from social media to radio and print media. I will now attempt to add some momentum to this discussion with a few pointers.

The legal basis of music performance licensing is well explained by misternv on the diasporadical blog so there is no need to be repetitive. Basically, when a song/musical work is published, different groups have some claim to copyright – the composers (the folks who come up with the various elements that make up the song in terms of beat, stems etc.), the producers (the folks who do the final mastering and recording) and the performers.

A lot of financial input is involved in the production and publishing of these musical works, therefore these groups have to be compensated for their efforts. This is mainly achieved by issuing licenses to those who intend to use their musical works. To cut down on the hustle and bustle of tracking down each and every copyright owner for authorization to use their works, the right to issue these licenses lies in the hands of these non-profit (collective management) organizations: MCSK (on behalf of composers) and KAMP (on behalf of producers). The fees from licensing then trickles down as royalties to the various copyright owners with PRiSK having the responsibility of making sure that performers are also part of the equation.

In applying the strict letter of the law, DJs as performers of copyrighted material need authorization for the public performance of the musical works involved. In order to obtain such a license, it has emerged that DJs will need to pay the Collective Management Organizations (CMOs) a cumulative fee of Kshs. 31,500.That is fundamentally the state of the law as it is. However, the state of the law as it ought to be could be another matter altogether. The state of the music industry at the moment stands out as an unavoidable challenge to the application and implementation of some of legislation touching on music licensing.

As regards public performance licenses, the long-standing industry custom has been that in clubs/discos/events/concerts involving performance of music, the onus is on club/disco proprietor or the organizer of the event or concert to pay the relevant fees without the involvement of the DJ. One therefore wonders if the focus should be on the organizer/proprietor instead of the DJ if no license has been taken. The organizer or club/disco proprietor usually gains the most from the public performance therefore there is more to gain from ensuring that owners or organizers of clubs/discos/events/concerts obtain the relevant license than ensuring that DJs play an annual flat fee.

On the flipside, the argument for DJs having to pay for public performance licenses is sound especially for well-placed professional DJs who gain financially through playing in exclusive, up-market clubs, public events and concerts. The problem probably lies in the rate of the fees – the majority of upcoming/small scale DJs who play at small establishments for a few thousand shillings do not see Kshs. 31,500 as a reasonable rate for licensing fees. I’m aware that tabulating/calculating fees according to income from public performance could prove immensely challenging for the CMOs but the flat fee must be balanced.

In addition, a vast number of professional DJs receive tracks from musical artistes solely for the purpose of having them play those tracks in clubs, events, radio/TV shows etc – they are called Promo CDs or Promo packs in industryspeak. In my view, this constitutes sufficient authorization to perform the musical work. The question is whether a DJ who plays music solely from these “promo packs” needs to take a public performance license. This situation also raises the question as to why the CMOs prefer a flat fee for public performance licenses instead of a regime based on actual performance of a musical work. A flat fee means that even a registered artiste whose work is never played even once in a club/event stands to gain. It also means that the fees are also charged on behalf of the copyright owners who want their work performed by DJs only for promotional purposes and not financial gain.

The CMOs have also intimated that DJs need to obtain reproduction licenses to cater for the practice of copying of musical works from their own private collections of legally obtained CDs and vinyl records to storage devices or through systems such as centralized data banks, music pools or just plain old ripping music videos off YouTube for the purpose of public performance. Other countries including the United States find it difficult to grant a monopoly in a single entity to issue blanket reproduction licenses and leave this to the individual copyright owners.

This brings in the issue of distribution of music by the various copyright owners vis a vis the nature of the DJing these days. Distribution of local music is wanting – partly caused by the fact that the average Kenyan consumer is not used to legally purchasing music. The Camp Mulla debut album proved to be a very elusive item on the first two weeks of its release, for example. Not all local artistes can claim to have a proper release of a single suited for the DJ (in high quality lossless formats such as FLAC or WMA with extended versions, instrumentals and acapella versions). I suspect that there are artistes who consider posting their music on YouTube and handing copies to TV/radio stations a release. This means that the DJ will resort to the above mentioned means of obtaining the music.

In light of the prevailing developments, let’s now see what would be a suitable practice to follow if you are a professional DJ dealing with musical works:

1. Production
If you are a DJ involved in the composition of a song (DJ Kaytrixx in Bamzigi’s Bachette for example?) and have been credited for the song as either a composer/co-composer or performer of the work, make sure you are registered with the relevant CMO to get your share of the royalties.

2. Remixes
Remixes are considered derivative works (those based on an original work) and thus needs authorization of the copyright owners. If they send you the track to remix, that should constitute sufficient authorization. Make sure you and the copyright owners are clear on how you want to deal with the resulting copyright in the remix. You could opt for a one-off flat fee or also claim your share of the royalties accruing from the remix as co-composer of the work or any arrangement that suits you.

3. Mixtapes, Promo Video Mixes and Bootleg Remixes/Mashups
If we were to apply the law strictly, you would need the blessing of each and every copyright owner of each and every track to release these. However, promotional compilations, mixtapes and videos you release for free could fall within the Fair Use category (see below). Bootleg remixes or mashups could also fall within Fair Use.

4. Playing in Clubs, Events, Concerts etc.
Wherever you perform live, make sure the proprietor/organizer has the relevant license. If they are not keen on obtaining one, you could factor in the cost of obtaining your public performance into your overall fee… Good luck with that though…

5. Fair Use
Essentially, you need clearance from copyright owners when recording and releasing your mixes or mashups. However you could rely on the doctrine of Fair Use to justify such use. Fair Use is a defense to copyright infringement designed to permit limited use of copyrighted material without permission to encourage innovation, parody, commentary, criticism, research and such positive results. Determining whether your mix, remix or mashup qualifies as fair use several factors are considered:

If the use is of a commercial nature: If your purpose was to use the works to gain commercially (selling mixtapes or remixes) you should not fall back on this defense
Availability of the original song: It is hard to prove fair use if you use an unreleased track without authorization to reserve the owners right to decide whether to release the song
How much of the original song was used (in the case of remixes/mashups)?: the less, the better

Has your remix diminished the value of the original song (in the case of remixes/mashups)?: in terms of preference of the original over the remix, and other licensing opportunities such as preference of your remix for use in TV or radio advertisements over the original could hurt the original song’s copyright owners

***
Watch out for Part II where I ask MCSK and the other CMOs some nagging questions.

Private Solutions: A Tale of Political Awakening and Coming-of-Age in Africa

noreply@blogger.com (willpress) — Mon, 13 Aug 2012 07:24:00 +0000

"Loss and liberation. They often appear together. Some say this applies just as strongly for countries as it does for individuals." _ Luka Sollo

I intended to write this book review in May right after the glitzy launch of the new political party affiliated with presidential hopeful Uhuru Kenyatta – The National Alliance – but fate had other plans. By some stroke of bad luck, I lost my copy of the book after a brief visit to a cyber café in Nairobi’s CBD (has ANYONE ever recovered anything misplaced in a Kenyan cyber café?)! In as much as I knew where I could get access to another copy of the book I intended to review, I would never get back the relevant timing of the TNA party launch. However, I am luckily afforded another opportunity now that the country is still abuzz owing to Miguna Miguna’s launch of his memoirs, Peeling Back The Mask, written after his fallout with our PM Raila Odinga.

The book I speak of is Private Solutions: A Tale of Political Awakening and Coming-of-Age in Africa, written and self-published in 1999 by Steven Were Omamo, a Director at the World Food Programme and also a role-player in economics and food policy circles of the AU and UN. It proves very interesting reading given the format and content of the story. This novel takes the form of “memoir fiction” or autofiction – an autobiographical account of moments in the lives of fictional characters. What results from this unique style is a book-within-a-book of sorts. Private Solutions is centred on Luka Sollo, an economics lecturer and the member of a newly formed political party of a fictional African country. In as much as the country is fictional, the discerning Kenyan reader will have a great time lifting the thinly veiled metaphors peppered throughout the entire book – references to towns such as Terodlé, Umusik and Urukan, references to geographical features such as The Valley and The Great Lake, etc.

The genesis of the story is the brutal murder of Luka’s father under mysterious circumstances that lead Luka to believe that all is not well when a poor squatter is arrested and charged. It is this quest for the truth (and subsequent death of one of his colleagues) that thrusts Luka into the murky world of domestic politics where he uncovers a sinister plot by politicians from a regional block to secede from the rest of the country and form a secluded government. It is shocking how the situation being envisaged by these rogue politicians mirror all the political upheavals that have shook this country post independence, that is, the creation of ethnic tensions (1992 clashes), military involvement (1982 coup attempt) and the exploitation of ethnic tensions to change the destiny of the country (2007 post-election violence).

Luka shakes off his middle class apathy (often cited as one of Kenya’s socio-political quagmires) and decides to have a say in shaping the destiny of his country in political terms. His acquaintance with one Dr. Tai Ogundipe, a wise and charismatic Nigerian with the flair of Fela Kuti and the determined resolve seen in the likes of Miguna Miguna, further cements his decision and he begins the process of coming up with a political party that will shake the status quo of the nation and finally bring reprieve to its long-oppressed citizens. It is Ogundipe that provides an accurate description of the status quo, which rings true for most African countries:

“First you can be sure that Letat will continue to use the ethnicity card to buy time; more people will be killed, maimed, orphaned, raped, rendered homeless as a result… Second, … new wealth will not be shared by all citizens but will instead accrue to a favored few… Third, mismanagement of your public sector will continue and likely deepen… That is the country you will have by the end of Letat’s current term.”

The subsequent e-mail correspondences between Luka and Ogundipe as the party is formed and progresses provide what can only be described as an impressive guide to creating a progressive political party for Africa. That segment is so good; it is easy to forget that the book is fictional and treat it like essential strategy notes: The party’s top brass comprises of professionals under 40 years of age from different sectors and of both genders. The party is advised not to have a nationalist agenda based on xenophobia and exclusive notions but nationalism striving towards an open, assimilating nation. Their sourcing of funding is mainly from the domestic population who are viewed as “partners” or “investors”, the rationale being that the more the population invests financially in a political project the more committed they will be, as opposed to other parties that rely on foreign funding or funding from a select few to serve the interests of a few. As regards the fight against corruption, Ogundipe points out to Luka that the best method of attacking the vice is not a high profile campaign asking or compelling people to forgo corrupt activities (which in most cases are just private solutions/resorts to wider public problems). The best methods would be to instead concentrate on the wider public problems that fuel corruption –provide basic amenities, improve infrastructure, make vital goods and services more affordable, promote job creation etc:

“If we Africans have a signal feature, it is that we specialize in devising private solutions to public problems. We are compelled to...From the ugly water tanks on house after house even in the most posh residential neighborhood…to the growing number of school age children herding livestock in rural villages during school hours…Shoddy public utilities mean that we all have to be at least partially self sufficient in water and power…Retirees with meager incomes…do as their parents did three quarters of a century ago; they send their kids into the fields with animals…So the point you need to get across to the average man and woman is that a vote for you is a vote for a party that will seek public solutions to public problems.”

As regards washing off tribal prejudices, things take a more personal turn as the party’s top brass (all from different ethnic communities) talk about where their tribal prejudices emerged and it is discovered that the “apathy, paralysis and easily-ignited blind rage” resulting from ethnic-based clashes had been exploited by past and present regimes to keep focused, progressive opposition divided:

“After that things got more personal. We talked about tribalism and what it has meant to each of us as individuals. We lamented the many conversations that had been ruined, friendships hijacked by ethnically insensitive remarks…And each story was tinged not only with anger and bitterness, but also with a strong determination to hold on to that which had been ridiculed – be it foreskin, skin tone, head size, lip size, teeth angle, accent, whatever – and in doing so remain true to the tribe…talking about it helped. We laughed a lot.”

The final punch the book drives home is how the country’s loss can eventually be the beginning of its liberation, as with individuals. The loss of Luka’s father eventually leads to his getting a fresh burst of life and hope through the small gains his party makes in the course of the general elections. The same probably rings true in Kenya. The apparent loss of our lives and freedoms since independence right through to the 2007 Post-Elections violence and beyond should propel a desire to change the status quo, to speak out and oppose injustice and to strive towards the sanitization of our democratic space and rights. And as many have said before, if we see little value in the lives already lost or wasted, then perhaps more should be lost until the point sinks home.

Steven Were Omamo wonderfully crafts the novel for quick, enjoyable reading (being only 160 pages long) despite all the amazing perspectives and raw facts on how to spark Africa’s socio-political renaissance. There are lots of quintessential Kenyan anecdotes and funny incidents to make you laugh along the way to the back cover as well. I dare say that this book is more relevant to the country now than when it was published 13 years ago! There is a sense of political awareness building up right across the board and there still is a lingering question on our minds that remains unanswered: What if the PEV of 2007 had raged on? This book adds further questions – what if it had raged on to the point of secession? As we proceed to another election period soon, do any of the political parties in place come close to resembling the impressive set up of Luka Sollo’s PNN party? Good thing is that the book not only poses vital questions but also suggests much needed solutions as well. The views expressed here are not utopian but realistic ones alive to the unique challenges the African continent is faced with. Everybody should read it as soon as possible.

PS: Now, to my knowledge, copies of this book are very scarce indeed. I could only trace a single physical copy on sale on Amazon. That is why the review is as lengthy and quote-laden as it is – so that as many people as possible get the gist of the book. However, the author may be contacted via his LinkedIn page or the email address provided in the book: swomamo@yahoo.com to discuss getting copies of the book on order.

Of Gentlemen: P-Unit vs. Fela Kuti

noreply@blogger.com (willpress) — Wed, 23 May 2012 10:49:00 +0000

Have a listen to these two tracks, first the locally popular tune by genge artistes P.Unit backed by Sauti Sol...

...and then this one by Fela Kuti...

Now,with that reference material, we can now settle down and ponder the following question: Are you a gentleman?

*inspired by a tweet from @25mb that went largely unnoticed*

RIP Megaupload

noreply@blogger.com (willpress) — Sat, 21 Jan 2012 12:42:00 +0000

"I want to be like some terrorist, a socio-cultural terrorist. Radical and careless." _ Mehul Gohil, Farah Aideed Goes To The Gulf War

Amid all the noise surrounding SOPA and PIPA - a fresh attempt againt the current freedom enjoyed by internet users in the USA - many pundits had already predicted a worldwide detriment if the two bills were passed into law, hardly a surprise given the way that US foreign and economic policy seems to dictate that of the rest of the world, especially those of us in the Third World. Sure enough, the first casualty has faced the firing squad and its dismembered head is being displayed all over the internets, much akin to the infamous Osama slaying. Friends, Megaupload is no more!!

Yes, the Feds launched an indictment against owners and managers of the file-sharing site that we have come to use and love so much on various charges of copyright infringement that goes into the hundreds of millions of dollars. In addition, access to millions of links to files hosted by Megaupload is now impossible since it has been completely shut down. Of course, the pain and loss is being felt not only by American users but nearly the entire internet universe, including my very own virtual front door. I happened to use Megaupload exclusively to up my Mixcloud-hosted mixes along with other miscellaneous .rar files for private distribution. I now have to deal with re-upping around 5GB of files with the obvious time and money implications (this is Kenya, high-speed net at affordable prices are still something of a pipe dream, you know).

This murderous event is perhaps a foreshadow of the events to come if at all SOPA and PIPA are passed by the US legislative system. Perhaps a complete shut-down of other common file sharing sites: Rapidshare, Fileserve, Zshare or the increasingly popular late comer, Hulkshare? It could spell the end of YouTube, Vimeo and perhaps even the transformation of Facebook and Twitter to such levels of redundancy that the Chinese internet space is already used to.

Besides, the war on internet based piracy could present an interesting backlash against the spirit of American foreign policy. In Africa and other parts of the Third World, this war may rejuvenate traditional forms of piracy - physical bootlegging of CDs, DVDs, books etc - run by organised criminal enterprises, enterprises that have been proven to have links to terrorism, especially targeting America as opposed to the second degree bootlegging stemming from internet piracy itself (eg. that 50 bob movie guy you normally go to).

To some extent I have always considered Direct and P2P file-sharing a gift to the Third World, something like international donor funding only of the intellectual property kind. I mean, the way things are just do not support anything else!! Distribution of movies, books, films etc etc to Africa (and Kenya in particular) is currently pretty shitty as opposed to the vinyl 70s and 80s for example. physical distribution is expensive while internet-based distribution models such as iTunes requires retailers to own credit cards, while a majority of the population remains unbanked. Before the creators and distributors of intellectual property look for more innovative ways of marketing and selling their commodities to Africa (such as partnering with mobile money transfer systems such as M-Pesa) I do not see how the current status quo will fail to subsist.

The Machage/Kapondi/Miller Case: A Good Electronic Evidence Precedent?

noreply@blogger.com (willpress) — Sat, 17 Dec 2011 09:08:00 +0000

The Case

Earlier this year, MPs Fred Kapondi and Wilfred Machage along with businesswoman Christine Nyagitha Miller were brought before a Nairobi Court on charges of hate speech contrary to the National Cohesion and Integration Act, 2008. These charges were based on the facts that they were allegedly caught on video making inciting statements amounting to hate speech during the launch of the NO campaign team's secretariat on June 10 last year, right in the climax of the constitutional referendum debate. Edited versions of the video recordings were later broadcast by various broadcasting stations in their news segments, prompting the National Cohesion and Integration Commission to initiate charges against the three.

This is not the first time that a criminal case based majorly on video evidence has been brought before the courts. The Edward Kirui murder trial was the first of such, but instead of providing good precedents as to how to treat evidence that is electronic in nature, the judge instead (and correctly) concentrated on the creation of reasonable doubt by discrepancies as to the serial numbers of the bullet and alleged murder weapon. This present case thus provided (in the eyes of many) a fresh opportunity to treat electronic evidence with the weight it currently deserves, given the various amendments to the Evidence Act and the enactment of other statutes such as the Kenya Communication (Amendment)Act.

The Judgement

However, Nairobi Chief Magistrate Gilbert Mutembei's judgement of this case has again fallen short, reflecting the judiciary's stubborn stance and negative attitude towards digital evidence. He declared the video evidence inadmissible on the main ground that it did not comply with the provisions of the rules of evidence. To further elaborate, the Magistrate further observed that:

The cameramen who recorded the videos could not narrate to the court what the accused had said as they were concentrating more on the "quality" of the recordings than what was being said.Quoted: “Michael Mbugua as a camera man could not narrate to court what any of the accused had said because he was concentrating on quality.The second witness Geoffrey Wamugo who is a journalist did not testify that he heard the accused utter words ‘particularized’ in each of the charges” (In other words, the magistrate seemed to treat the evidence as secondary evidence that cannot be admissible until corroborated).
The video footage played in court as evidence was not the full coverage of what they said since it had been edited for broadcast purposes.
For any printed record or magnetic media to be admitted as evidence, there must be prove through certificates confirming the authenticity of the records.
The Magistrate summarized the failures of the prosecution as follows:
“The prosecution failed to comply with the clear provision of evidence as regards the production of electronic evidence in court,the evidence was critical and its omission is fatal in the case against the accused.”

The Law

Several questions spring form this ruling: Are there "clear provisions of evidence" as regards production of electronic evidence? Must the facts shown in/recorded by electronic evidence in general, and video evidence in particular, be corroborated by the creator or is the evidence good in itself? Should the video evidence be provided in full or can it be provided partially? What constitutes certification when it comes to electronic evidence?

In my opinion, the provisions of law that provide for the production of electronic evidence are far from "clear". Section 106B of The Evidence Act provides that such electronic records shall be deemed to be documents and admissible without further proof if certain conditions are fulfilled.Subsection 4 of the same section is what proves problematic and is, in my opinion, ambiguous as to whether a certificate is required to make any statements regarding electronic records or whether any matter stated in a certificate as regard the electronic record is good evidence in itself, in the same manner affidavits work. There is no provision as to the form of the certificate in question: Could an ordinary affidavit or even the witness statement of the cameraman and the journalist been sufficiently deemed to be certificates?

The Evidence Act is silent on whether electronic records should be provided in their full form (such as in this case, the entire recording of the event where the inciting statements were made) or whether they can be provided partially, as in the case of news items showing parts of the clips.

Conclusion

It is hard to particularly fault Mutembei's decision. The relevant sections of the Evidence Act relating to electronic records are written in a manner that treats this type of evidence as documentary/paper evidence, leading to a lot of difficulties in interpretation. The very nature of digital evidence, as I had earlier pointed out, requires different and specific rules on how to deal with them. The current rules are scanty at best and fatally ambiguous at worst. Digital evidence can easily be tampered with and altered at the mere click of a button. Mere certification does not guarantee the integrity of this type of evidence. Other techniques such as time-stamping and the use of experts to analyze electronic records should be explored and integrated into these provisions. The only good that has come out his judgement is perhaps it creates the precedent that if video evidence is to be produced as evidence, it shall be produced in its entirety as originally recorded and not in edited form.

In addition, the prosecution has once again come out as the main undoing of a seemingly straightforward case. The prosecution did not consider it important to secure the original recordings but instead chose to rely on snippets from news broadcasts - more like presenting to court the relevant pages of a past judgement instead of the entire document with the relevant parts highlighted. From what I have gathered so far (until I read the entire judgement and not just the reports), the prosecution seemed to have been casual in gathering the evidence, authenticating the evidence and producing it in court. But then again, with the silence/ambiguity of the Evidence Act, it is hard to blame them as well. This case exposes the extreme difficulty with which the judiciary and the entire legal profession in Kenya is still trying to deal with electronic evidence. More are on the way, without a doubt...let's watch.

Huff, Puff, Sting: Lumumba's First TKO?

noreply@blogger.com (willpress) — Tue, 23 Aug 2011 09:36:00 +0000

"Float like a butterfly, sting like a bee!" _ Muhammad Ali

The state at helm of the Kenya Anti-Corruption Commission (KACC) since its inception way back in 2003 has always been a reflection of the state of the entire machinery itself. Aaron Ringera first took the helm with declarations that all sorts of "small fish, big fish and little fish" running the risk of falling prey to the brand new anti-graft nets. However, by the end of his second term, Ringera had little to show in terms of "big fish" notwithstanding the fact that 4.6 billion shillings worth of omena-like dealings had been detected and prevented in the space of four years. Attempted recovery of proceeds from the Goldenberg scandal and other misdeeds abroad had fallen flat on its face. In fact, the highlight of Ringera's directorship was the huge row arising from the debate as to the legality of the process that led to his re-appointment for a second term.

When PLO Lumumba replaced Ringera last year, the general perception was that the status quo would subsist - more huffing and puffing (with a lot more eloquence this time) without any tangible results. Indeed the status quo seemed not to have changed at all and things began to take the form of yet another omena fishing expedition. Most of the high profile corruption cases seemed to be heading towards failure in court and our TV screens were awash with the somewhat thrilling footage of bribe-taking traffic police men and women being chased into banana plantations as a testament that the KACC was "working".

It thus follows that many had been caught by surprise yesterday's claims by PLO that Assistant minister Cecily Mbarire and her husband had allegedly approached him to compromise the investigations into the scandal that has bedeviled the Water Ministry, and that the duo had unfortunately escaped the dragnet of the "sting operation" that the good Director had laid out for them. According to what I gathered from the director's statement (which at certain points sounded like part of The Wire's script), Ksh. 100,000 was held out in his direction by Cecily Mbarire and her husband, Dennis Apaa, possibly in an attempt to turn things around and accuse him of demanding a bribe. Of course, Hon. Mbarire has termed the allegations as untrue and malicious.

Whether this incident goes further than this or not, PLO (and the KACC in general) has scored vital points in its war against high profile corruption and has also highlighted the state of the commission at the present moment. If the allegations are indeed true, this may highlight how high up the ladder the agents of corruption are willing to go, or have previously gone to protect their interests. Additionally, his public rejection of these corrupt offers could also be a testament of the effectiveness of the vetting culture that has recently been embraced. Having been one of the first public officers appointed after a very rigourous vetting process, it is unlikely that he will want to be among the first to fail the integrity test.

If indeed a sting operation was launched and failed due to a tip off, this could be an indicator of the disadvantage of not granting the KACC arresting powers and thus their need to collaborate with the police/CID. We all know the corruption problems our police force is plagued with. Couple that with the nature of high level corruption being very confidential and need to share sensitive information across these two institutions in order to effect an arrest, and a leak looks very likely in this scenario. The Prevention of Corruption Act (the law establishing the KACC) needs to be reviewed to grant the KACC some form of arresting powers.

All in all things are looking very good for Lumumba at the moment. He has dealt a significant sucker punch at the seemingly impenetrable walls of high-level corruption and scored vital public confidence points while at it. Like the boxing great, Muhammad Ali, PLO Lumumba is slowly coming out as one who can REALLY talk the talk and is not afraid to get into the ring either. Let's watch...

UPDATE: Well, this sadly proved to be PLO's last fight. Barely days into the Mbarire incident, the KACC top brass was fired - a move clearly machinated by Parliament, perhaps stunned by PLO's surprise attack on the status quo of impunity.

Beef With Soap & Hearing Aids

noreply@blogger.com (willpress) — Tue, 18 Jan 2011 13:31:00 +0000

Dear Kenyans (preferably those in the Navy or those with private yachts),

Happy New year folks!!! I know we are almost into another new month but it seems like the year has simply refused to take off just yet....for me that is. Its like am in a dream that I cant wake up from and in this dream, I'm just looking at a pendulum swing left right, right left, like something is bound to happen really soon. Its quite sad but I guess I am not in isolation. Kencell...or is it Celtel...or is it Zain...or is it Airtel...Never mind, that telecomm company with half of a hearing aid kit as its logo is in the same boat and they are desperately trying to call for help but it seems they are the only one with the hearing aid in a nation of deaf mtejas.

Yes, I feel like Hearing Aid Co. is making its last clutch at the straw before sinking into another logo in the name of their new promo - Feelanga Free 1 bob per minute. But Rene Meza doesn't seem to have profit on his mind right now, all he is intent on doing right now is grabbing Safaricom's Bob "Call-More" by the nuts until the new logo design is completed. No wonder their old logo is still scattered along some parts of the country...

I'm all for saving that hearing aid logo, because its really good looking. and in fact one of the best there is around so I'll be taking most of my calls on Airtel hoping that we wont return to the dark days of pink Kencell and their mundane advertising:

Speaking of mundane advertising, I can see a couple of chaps stuck with me and Hearing Aid Co. in this vessel of misery. In true Smallville fashion, a meteor fell into one of Bidco's oil processing facilities and out came a man in a dazzling white suit weilding amazing bars of soap of different colours that could wash off nearly everything a few centimetres short of corruption on a Kenyan politician's psyche... and thus Nuru Multi-Purpose Soap was born. Check the amazing promo ad for it below:

A few of us however sat back halfway through the dazzling display and pondered: If the SOAP is MULTIPURPOSE, why then are they showing us DIFFERENT SOAPS used for DIFFERENT PURPOSES??? Why not ONE, yes, ONE MULTICOLOURED and MULTIPURPOSE SOAP???. *sigh*

And indeed, like Noah's Ark, this boat was not devoid of animals and what better animal than to have a bull, yes, perfect to pounce on when me and Rene Meza are in need of some beef. The only problem with this bull is that he is busy hawking... wait for it, wait for it....BEEF FLAVOUR!!! *facepalm*, that even knocked the decibels of mundanity off the Hearing Aid and the Soap(s)...I was lost for words really when this Bull ( his name is Beefy Bob, I'm told) tried its sales pitch on me. At least a friend of mine recovered and managed to get some thoughts through:

"Beefy Bob on the other hand is the one that disturbs me the most..first,that nose of his is enormous. Secondly why in God's good earth would i want vegetables to taste like BEEF...if its beef i want to taste, i will go hunt down a cow (or just go to njoro's butchery) and cook the fleshy substance!And when a talking beef is trying to sell his own flavor then he should be held suspect..or taken through psychological treatment to regain his self-worth!"

SOMEBODY HELP ME GET OFF THIS BOAT!!!

Signed,

Deceased-in-Advance.

Quo Signo Nata Es?

noreply@blogger.com (willpress) — Mon, 20 Dec 2010 11:38:00 +0000

"Im gonna buy a gun and start a war/ if you can tell me something worth fighting for. . ." - Coldplay

Sometimes suicidal thoughts permeate your mind when you are writing a mwakenya for the 20th page of your 200 page handout a day to an exam, as you watch four o'clock news when someone called the Attorney General comes up smiling to announce as he has for the past 12 years, that yet another politician can take away our few billions due to our lack of evidence but, somewhere in that glint of his eyes, comes the message of "Ye who be without sin cast the first stone". . . And you remember how u bribed the electricity bill man to "misread" the metre. In the same spirit will another man called The Speaker come and tell you that your politician is already highly taxed. . . And then somebody called the President, who has never as much raised his voice at a kitchen cabinet for taking away the national cake to their own houses, is at pains to describe to you how he is sleeping with only one woman. . .officially that is.

And in other news, your neighbour was beheaded yesterday. By Mzee Xs boys and their friends. . . These people who purport to be the true descendants of the Mau Mau. . .deprived of their birthrights. . . Yes, we owe them for life for our liberation? Then you wonder if freedom fighting was a sacrifice or a contract to paid mercinaries. . . And if its the latter. . .you wonder who is supposed to bear the burden of a contract that they were not privy to?

You get a chance to shout out to your homies on The Beat. . .then it hits you, one pal died in a supermarket fire as he struggled to get through a locked emergency exit. Another was felled by police bullets in his own house as they pursued suspected robbers. . . You don't raise your voice so that you don't lose excess calories given a meal a day requires the tendencies of an anorexic teenage model wannabe. And you find yourself shouting out to "Kalonzo kalonzo hivi. . .Ruto Ruto hivi" to show mercy on the rest of us and "shukisha unga chini ili pia sisi tuweze kula kiasi hivi".

You stoop down to drop a coin to the beggars bowl as his counterpart picks your pocket. . . Its a crime to seem so "sufficiently philanthropic" these days. . .apparently. Then you curse yourself for having not got a car by now. Preferably one with tinted windows so that you cannot see these children of lesser gods. . .scum who don't appreciate mercy. . . You curse yourself for having ignored the sign "DON'T FEED THE MONKEYS" as you walked through this zoo. . . Monkey see, monkey do. .so chances are you're a monkey too! That random beggar there had knelt in a semi-Ghandi stoop, much like you had done after the office bash when your boss demanded a blow job to move you up the corporate stratum. . . Sigh!

And you begin to contemplate how the hell you refused to sign that illegal cheque at the office, gotten your cut and shut the hell up. . . Dignity seems to be only preserved for those who can feed it with another's blood. . .

And then your eyes acquire the strange glint you had detected when Kamlesh Pattni pleaded not guilty. The same glint in Eric Kiraithe's eyes as he dismissed police killings on camera as movies. The same glint in their eyes as we watch the entertainment show called "KTN News at 9" as these comedians juggle your life in their hands. . .as these magicians show you how your tax money can disappear. . .how your oil, maize and even votes can disappear into thin air. . . And at the end we all give them a standing ovation for putting on a great show. Bravo bravo!!!

May he minus sin cast the first stone? If so, then may the one with a bigger speck in their eye be hit with a bigger stone. . . In a few seconds, we will have 210 dead bodies. . .all of them with names starting with "Hon. XYZ."

And you dismiss yourself for trying to think a bit too smartly so you try and remember where you'd kept your marijuana blunts. . .maybe that will help clear the air, all puns intended. . .

Walls start whispering everywhere, you nearly pee in your pants and wake up screaming. . .it was all a dream! It was all a dream? How wrong that sounds makes you wonder what kind of a madman you are!

- Lost and found thoughts from March 18, 2009

New Safaricom Ad: Niko Na Qantas?

noreply@blogger.com (willpress) — Sun, 21 Nov 2010 20:43:00 +0000

Safaricom have done it again...they have secured another feather to adorn their advertising cap with their new TV spot, the second to promote their well known tag line of "Niko Na Safaricom" and to celebrate 10 years of dominating the mobile telephony market to a virtual monopoly. Most of those who have viewed the ad are quite impressed, judging from the loose information I have collected through physical and social network convos that I have been privy to. True, the ad's cinematography is amazing to say the least, the panning and quality of the shots transform some of these locations into a Sangrila, a Narnia, a utopia of sorts, and even if Mt Longonot, Hell's Gate or the Tana River is just a stone's throw away from your living room for example, that ad will make you feel as if you have never seen it before!!! That alone did it for the ad, the song, well, not so much, the song works for my 5 year old niece though. All in all that was a great job from Redsky, Safaricom's ad agency. Here's the ad below:

However, not everybody is going all gaga about the ad. There is a level of skepticism about the ad on two fronts, one completely flimsy and the other quite credible concern. Well, the first group is of the opinion that the majority of the shots must have been lifted from some other location than Kenya thus beats the logic of packaging a company that has solely been serving Kenyans for the past years ...BUT that probably means that many Kenyans have forgotten the pictures on their Heinemann Primary School Atlases and the Kenya Tourist Board really has a lot of work to do in terms of sensitizing locals on what this country has to offer. I linger with this group only to the extent of this location below. Where is this place???

The second, more serious group has been struck by a serious case of déja vu by this ad leading to a mini protest because this other ad made for Australian airline Qantas in 2009 dubbed "The Spirit Of Australia":

The concept of the two ads are uncannily similar, ain't it? The traditional singing style, the soloist at the start, concept of a choir, the sweeping panoramic shots, the standing position and movements of both choirs etc etc - its almost like the different choirs were moving around together and performed in the same blimey day!!! The question that this second group are asking now is whether this was just plain coincidence or whether the Safcom people specifically copied and pasted the concept and soul of the Qantas ad. I mean, these ads are fraternal twins, or siblings of the same father at least!!!Look again:

Prima facie, one can be tempted to conclude that Safcom's people have committed a heinous crime of idea theft, an act of blatant plagiarism by lifting the Australian ad's concept almost to 80% congruency without (apparent) permission from the owners of the rights for the Qantas ad concept. Somebody on YouTube even intimated that Qantas should take some legal action and seek some sort of royalty payments from Safcom or indeed Redsky. Well, no matter how blatant this 'theft' may seem to all of us, any action on the legal front is a LONG shot! Lemme try to explain why.

1. General Perception of Plagiarism
Plagiarism (wrongful appropriation or publication of another's original works or ideas) is considered one of the softest of offences and is not even perceived as a crime proper the way something like copyright infringement would. This is main because of how problematic it would be to legally prove the aspect of original ideas or works. In this case for example, we have no idea what inspired the Qantas ad, could have been anything and could even end up being someone else's thus where and how the buck stops as regards original thought process is still way too complex to be handled in a legal manner. There other minute differences in the two ads that would make a case for plagiarism even harder. In Qantas kids are singing, in Safcom its adults. In Qantas the locals are spots from all over the world, in Safcom the shots are purely Kenyan. The language and contents of the songs are different. Its not as straight forward as this case right here. Conceptually, plagiarism remains the province of moral and ethical arguments, where it is your reputation is at stake without the risk of hard legal penalties from proper judicial bodies.

2. Not Fitting In Unfair Competition Argument
An angle whereby plagiarism can be considered on a legal front, depending on the relevant statutes in place could be from the viewpoint of unfair competition where in a given specific area of specialty, one competitor stands to unfairly gain from lifting a concept originally developed by another competitor. This certainly cannot be the case between Qantas and Safaricom as they are in two completely different markets and their actions are unlikely to affect the other corporation's profit margins. The only fitting argument for unfair competition would be between the agencies that made the ads, and still the bars set for proving outright plagiarism will be damningly high.

3. General Attitude Towards Plagiarism in Advertising
Plagiarism was not considered as a problem per se in the advertising world until only recently where increased competition and thus the increased need for uniqueness in one's copy writing portfolio has made the sector finally notice the elephant of plagiarism in the room. The spirit of the whole ad business all along has been to pick up ideas from all over and trying to come up with a statement that fits into your client's needs (discussed further here and here) . Its almost like using papers and articles to do a research project for academic qualification. At the end of the day these people do it more for commercial gain than for its artistic or intellectual property value. Even the silent 'always give credit to/cite your sources' anti-plagiarism maxim fails to come in handy here since it would be quite hard to cite idea sources in an ad spot for ANOTHER company who probably need the entire spot to market themselves and not roll credits. All that is done when a plagiarism case pops up is that people just sneer and mutter amongst themselves as to how things have gone to the dogs and then its back to business as usual.

In conclusion, there's nothing really to moan about. Its not our beef, as many rappers would say. But still this should just be a sign of how much Safaricom goes in terms of innovation and in-built ideas. Majority of their best stuffs, from scratch card designs (Alternative Media Limited v. Safaricom) to even M-Pesa were products of outsourced and cheekily borrowed ideas. Comparing the two ads, i think the Quantas one whopped Safcom's because of how it is more involving and interactive while the Safcom one just wows us with the locations and that's just it. However, I also think the very first Niko Na Safaricom ad, the one depicting kawaida Kenyans going about their daily lives with the classical tune was really good. So good they shouldn't have made another one...

Standup Cross-Examination Comedy

noreply@blogger.com (willpress) — Sun, 24 Oct 2010 19:22:00 +0000

The Kenyan Prison system is probably one of the best places to look for reputably sound advice as regards those tenets of criminal law concerned with serious offences. This is mainly because the justice system as a whole is seriously backlogged and thus very slow in administering justice. This means that a person accused of a serious criminal offence and goes through the process of appealing guilty convictions from the magistrate's courts all the way up to the Court of Appeal will be in remand prison for a LONG DAMN time. The keen and more studious type will probably scour the criminal legislation and have it at their fingertips soon. Besides, its their life and freedom at stake here. These "gurus" soon become well known as consultants within their prisons and many will run to them for advice on how to counter the Prosecutor's case in court with at least an amount of confidence. Combining this quick advice one gets from the prison gurus and the sheer consequences if convicted for a serious crime can make the accused defend himself with the pomp and flair of a seasoned lawyer.

Open Court: where the magic happens....

I was witness to such an ego-pumped-and-ready-to-go fellow last week at a random out-of town magistrate's court near you where he and two of his pals were charged with the offence of violently robbing a well known English teacher of a nearby village school of his Nokia N95 worth 6500/- and money. Lets call him Akuku Danger and the teacher Oluoch Jamaranda (obviously not their real names in the spirit of identity protection). Unknown to everybody in court, both gentlemen are extremely eccentric people thus nobody would ever have anticipated the priceless rib-cracking dialogue that would follow when Akuku Danger was called upon to cross-examine (ask questions to) the complainant, Jamaranda. Although I have chopped out the less entertaining bits, the cross examination went something like this:

COURT CLERK: (to AKUKU DANGER) Do you have any questions for the Prosecution Witness?

AKUKU DANGER: Yes, your Honour, in fact I have several questions for him.

COURT CLERK: Proceed.

AKUKU DANGER: (to OLUOCH JAMARANDA)Now, Mr. Jamaranda, you said you first spotted me at the bar where you were watching football?

OLUOCH JAMARANDA: Thats correct.

AD: And then you also say that you concentrated on the football match the before leaving to meet your friend, Sharon in another part of town. Were you really concentrating on the match.

OJ: Yes, I was.

AD: The match was between who and who?

OJ: It was between Aston Villa and Chelsea.

AD: If you were concentrating on the match the whole time, how then could you have seen me?

OJ: I severally glanced around the bar and I saw you.

AD: Am I so attractive that you saw only me within that crowd of people?

OJ: (perplexed) I do not find you attractive in any way Mr. Akuku.

(Murmurs around the Court)

AD: You also say that after the match you went to meet your friend, Sharon at another part of the town?

OJ: Yes.

AD: Where exactly?

OJ: At a bar called Meeting Point Bar.

AD: What does Sharon do for a living?

OJ: She is a bartender at the Meeting Point Bar.

AD: If I tell this court that you and Sharon got extremely drunk at Meeting Point Bar, would I be lying.

OJ: That is a lie, Your Honour.

AD: But HOW?? Why would you go to a bartender's in the middle of the night if not to get drunk?

OJ: That is not your business, but we did not get drunk, we just drank a little then left for home.

AD: You say in your statement that you had a torch.

OJ: Understand me please, I said my phone had a torch not that I had a torch.

AD: There was a full moon outside, what then would make you use the torch in your phone?

OJ: I was crossing a railway crossing and I couldn't see well.

AD: Ah, so you don't see well, even in the full moon. Okay. You also say in the statement that "the trio, one of whom I identifed as Akuku Danger, ran after me tripped me and proceeded to start beating me..." Do you see any one here today called Trio?

(laughter)

OJ: My friend turned enemy, in education a group of three people is called a trio...Don't display your ignorance here.

AD: Can a thief beating and robbing you really allow you to see his face?

OJ: Some thieves are amateurs so they are careless when robbing other people.

AD: Now, in church, in the market place or in court, where are you supposed to tell the truth?

OJ: Everywhere, really?

AD: So tell the court the truth about who Sharon was to you?

OJ: She was just a friend.

AD: So, any other man could be a friend to her just the way you were a friend to her?

OJ: Understand me please, there is a friend then there is a lover, Sharon was just a friend.

AD: At your age, have you ever known that men sometimes fight over women?

OJ: (Irritated) The first time I knew of men fighting for a woman, somebody in our village pointed out that scar on your face for me!!!

AD: If I tell this court that Sharon was prostitute that you had picked up at Meeting Place, would i be lying?

OJ: (Shouting) THAT IS A LIE!!

(Laughter galore. Magistrate interrupts and reminds accused to stick to asking questions relevant to the case)

AD: How long did the attack take?

OJ: Around ten minutes.

AD: How can three people who told you that they would kill you spend only ten minutes with you? What saved you from these men?

OJ: I was screaming at the top of my lungs so much so that the people in the surrounding area heard my wails and ran towards the scene of crime to rescue me.

AD: You say Sharon witnessed the attack and theft, why hasn't she testified?

OJ: You have intimidated her and threatened her life.

AD: How? I have been in jail all this time, how could I have threatened her. Is my voice so loud that you can hear it all the way from the cells?

OJ: You have been sending emissaries who have threatened both me and Sharon in the prescence of my mother and father and am sorry to say, we also heard from them that one of you is taking ARVs. That will not stop us from pressing supplementary charges against you nonetheless.

(Magistrate warns Jamaranda to stop being too wordy or he will be held in contempt)

AD: Can I, Akuku Danger, possibly own an Nokia N95 like the one you claim to have lost?

OJ: Yes, anybody can own such a phone if they want to, even by theft!

AD: Did you indicate the serial number of the phone in your statement?

OJ: I couldnt record the serial of the phone because you had done away with the SIM card when police recovered the phone.

AD: (laughs) Now YOU stop displaying your ignorance!!! You clearly don't know what you are saying. Now in the statement you say we maimed you. What do you understand by the word "maim" as an English teacher?

OJ: (pauses, sensing a trick question) MEM, has several meanings. One of them is the short form of memory, but I also want you to note that my memory functions were working perfectly even as you and your colleagues hit me with wooden planks. My Central Nervous System was AUTOMATIC.

(laughter galore. Magistrate interupts Jamaranda and reminds him that he had already testified and what he is doing now is testifying afresh which is not allowed)

AD: Your Honour, I have no further questions... Mr. Jamaranda has already displayed his ignorance far enough.

The Magistrate then adjourned proceedings for 15mins. probably to laugh her head off from the privacy of her office. Pure, unadulterated comedy right there!!! Top Comics are probably easiest to find at the courts...LMFAO!

LSK List of Shame: Genuine Concern or Strategic Lobbying?

noreply@blogger.com (willpress) — Mon, 20 Sep 2010 09:56:00 +0000

Things are finally beginning to look up in terms of implementation of the provisions of the new Constitution that Kenyans okayed with a 69% majority on 4th August and promulgated on 27th August 2010. The first highlight of the implementation process has been the publishing of the Commission for the Implementation of the Constitution Bill 2010 that seeks to set up a body of competent vetted professionals to formulate and manage mechanisms that will be employed to ensure the proper implementation of the Constitution. Hot on the heels of that development, the Law Society of Kenya (LSK) in collaboration with Federation of Women Lawyers (FIDA) and the International Commission of Jurists (ICJ) are coming up with a list of lawyers who they want to be excluded from being considered for the post of Chief Justice when it falls vacant in February under the implementation timeline, a move that I find both positively interesting and negatively queer at the same time. Let me to explain how this List puts the LSK in a rather curious position.

First off though, it is interesting to note how Kenya has become one of those countries that employ ‘the list method’ in administration of justice. It works very simply – a scandal of any sort gets into the public limelight and pressure mounts on the government to act. A relevant commission is set up to deal with the matter and at the end of its proceedings, said commission will have come up with a list of suspects, forward them to the Executive for further action. The suspects, if named publicly, huff and puff in the media for a while and then the long silence prevails as the amnesia epidermis hits the entire country once again. We have seen it through the corruption scandals of the Moi government and more recently the famous Waki List of Post-Election Violence Suspects.

This culture reminds me of my days in high school when reams upon reams of paper was wasted by prefects in making lists of miscreants and “intelligence” on those planning to start terror attacks on the school or just general defaulters. These lists were sent to the Deputy’s Office and, being a very efficient man, he arranged the deluge of A4 foolscaps chronologically and according to the degree of the offence so that at one time in the future he would mete out punishments. Unfortunately, the chap was also a forgetful man and when we discovered this trait, when called to the office for a bit of nyaunyo or tree uprooting dispatches, the braver groups of ‘punishees’ would adamantly insist that he had already punished them the day/week before. He would desperately fight with his amnesia for a bit, ask some testing questions like what tie he was wearing on that day (I doubt if he remembered himself) and finally dismiss the lot. That is how we farted on justice back in the day, and it soon became a matter of pride to be on a Punishment list. However there were other unique lists which, if you had the bad luck of being an item, no matter how well you defended yourself and even if you truly had already been punished, you still got your ass whopped and an extra punishment to boot. These were lists from the Deputy’s very reliable spies among the normal rabble of students who did a lot of snitching and got lots of privileges in return and the very good ones were promised a prefect appointment in future.

Fast forward to the present day and here is the LSK trying to formulate a List of Miscreants within its ranks and advices the government NOT TO EVEN THINK about considering these lawyers for the post of CJ. I find this positively interesting because naming and shaming lawyers by one of their own is not considered normal practice in our legal sector. Lawyers, or rather Advocates, in this country seem to have developed an allegiance code of sorts amongst themselves. Something like the No-Snitching code of the Black American community or the extreme loyalty of the Sicilian Mafia, only a bit more elegant. They may want to tear each other apart in the adversarial stage of the courtrooms but hey, these are people who only recently read their asses sore in the same rooms and hostels at Law School. At the end of the day, the feeling is that lawyers should always remain “learned friends”. That is also perhaps why very few Advocates would be willing to take up a case involving a fellow Advocate, especially if such a case concerns some unethical conduct. Isn’t this what caused the formation of The Advocates Complaints Commission as a separate body to deal with public complaints against Advocates alongside the LSK’s Disciplinary Committee? Thus, the upcoming LSK List of Shame is a pleasant surprise to that extent. Finally the top brass looks willing to get past this No-Snitching policy and work on better exposing some of their members who do not have a good track record as regards their practice and conduct. Well done, kudos.

The queer bit about this List agenda is that the same group also say that the search for the next Chief Justice should exclude the entire Judiciary in addition to this Miscreant Gang of Unsuitable Listed Lawyers. Their reason for this is that our current crop of judges and magistrates are yet to be vetted afresh by a competent Judicial Service Body that is yet to be set up. Many people are reading this as a carefully orchestrated lobbying move to reduce the number of likely suitable candidates to fill the CJ position once vacant. I mean, when it comes to filling the CJ position, the ideal candidate will be someone trained in law with considerable experience in the practical intricacies of the same. In this country only three groups can at first blush possibly have this type of qualification – members of the Judiciary, Members of Parliament and lawyers in general. MPs are locked out because they have commitments to the electorate, leaving the judiciary and lawyers. Basic arithmetic will tell you that you only need to find a way of excluding judges and magistrates and voila, the post of CJ is successfully niched out to the lawyers hurray!!! Let us also have in mind that not just any lawyer fresh from school can be selected to occupy the CJ’s seat. Likely candidates are probably those lawyers with demonstrated clout, experience and commanding presence acquired from many years of research and practice. Without a doubt they will be well known to those in the profession’s circles. This shrinks down the number of likely candidates in this sector from the initial thousands to maybe a couple hundred. So, could it be that the LSK list is also just another move by individuals from within this group of a couple hundred to cut down on competition and thus ease the path to their vested ambitions? Smelly rat, anyone?

I also find it totally absurd that the LSK can spearhead the formulation of a list discrediting its members and at the same time hold itself out as the best sector to search for the next CJ. That’s like presenting a catch of fish to be used in preparing a Royal Banquet and then you say, “There are quite a number of rotten fish in this catch but I assure you this is the best catch you will get!” but HALLOOOO, what’s to show that the entire catch is not on the way to rot already? Isn’t the LSK one of the bodies supposed to be dealing with cleaning up the filth in the legal sector through its Disciplinary Committee? What have they done about those in the said List or is just a List of convenience and strategic positioning? One of the ways the LSK can clear (a small percent of) doubt in our minds as regards their List is to publicise the damn thing and tell us what heinous acts the named have done so that their names shouldn’t even come close to the thought process of those supposed to facilitate the selection of the next CJ. They should also abandon the rubbish claim that the Judiciary can’t be considered as a source just because they are unvetted. Well, why not vet them first and then the successful ones can also throw they hats in the race if they so wish? I hear many of them judges have seriously gone back to their books to get a second degree just to give them a necessary edge during the vetting process also slated for around February, though most will probably quit than be vetted again. That notwithstanding, the Judiciary also has a number of very intelligent minds and the much needed experience required to handle a CJ appointment quite well.

Judges at a recent open day, image courtesy of Nation Media Group.

This is probably not the last of Lists we are likely to see from the LSK what with vacancies in the Commission for the Implementation of the Constitution and even the judiciary itself coming up. We may even have a bunch of officials running up and down the country supplying the general public with lists of lawyers they consider unsuitable to stand for Senators, Governors and even the goddamned Presidency come 2012. I don’t how exactly to describe this sudden sufficient philanthropy of the LSK. Many will probably call it inverse democracy where the people have the right to select those they feel should NOT bother to try and represent them. To me, it just sounds like high school all over again.

The Mnyambuliko Era of Kenyan Brand Advertising & Promotion

noreply@blogger.com (willpress) — Thu, 19 Aug 2010 07:52:00 +0000

"Nyambua vitenzi yaliyomo katika sentensi hii."

Everyone who has been educated via the 8-4-4 system has definitely come across this ominous set of instructions in their Swahili Language/Grammar examination paper at one point or the other. Nine times out of ten, your sweaty finger would pause at the word “Nyambua” for about two and a half seconds as your brain involuntarily froze. At least that was the case with me. Even though the instructions related to conjugating Swahili verbs and all, no matter how many times I encountered the “Nyambua” phrase, it always carried with it innuendos of savagery or is it outlandish undertones. Just say it out loud. NYAMBUA... Has a strange ring to it, don’t it? Never mind that it bears an uncanny resemblance to the word “nyamba” which is Swahili for polluting the air. I also had the liberty of borrowing somebody’s Kamusi and discovered that “Nyambua” alternatively means to “pull apart or to tear into bits”. The very action of nyambua-ing a verb involved transforming the verb into funny sounding syllables, nothing far from this Congolese’s attempt at constructing a Swahili sentence:

Mimi banapenda basichana bana batako bakubwa bakubwa!!!

Resultantly, I always secretly admired colleagues who could grasp this Nyambua monster by the nether regions and manipulate it with ease from the “Fanya” right down to the “Fanyiza” cartegories and I accorded them the degree of reverence one would normally accord to those who speak in tongues. They could not exactly fill half of a minibus either…such abilities are not strewn aimlessly across the gene pool, certainly not! Another thing I suspect about this especially talented class of people is that they currently form a very influential part of Kenya’s Marketing and Advertising sector.

I make this claim because, all of a sudden, branding, marketing and advertising in Kenya is in a strange “Shock-Value Phraseology” phase. Of course we have previously been known to come up with strange but pretty functional brand names such as Ng’ombe Barbed Wire ( pretty straightforward - “Nataka Fence ya Ng’ombe” must have been a popular phrase back in the day).I wonder how functional today’s branding is. Here is a random example --->somebody decided to launch Ndole Paper Bags into the market recently… I’m not sure he/she/it had functionality in mind. Perhaps it’s a spin-off from the entire #FingerOfGod fiasco. Never mind that Ndole brand, for some strange reason, only brings me thoughts of ~~ass fingering, you know, like in the porno movies~~… never mind.

The TV ad that the CCK placed for its SIM card registration campaign also has its fair share of shock value. I mean, who expected the dude playing the extorting goon would say something in the lines of:

"Tuma one hundred thao ama UTAJUA MALENGE NI MBOGA!!"

Which self respecting swindler would dare issue such a hilarious threat? Anybody who'd receive such threats on the phone would probably have that ten second you-didnt-just-say-that-did-you kinda pause, the same brain freeze that Nyambua related questions and statements usually carry with them.

"...utajua malenge ni mboga..."

I find these new developments extremely intriguing because its like a whole new "big bang" in the basic fundamentals of how products are branded and promoted in Kenya. Its like some Einstein sat down everybody in the marketing game and delivered a Mnyambuliko Advertising Symposium resulting in the strange things we hear on TV or on the radio. The trend is quite obvious to those who have been keen to notice. Some sort of template is being used nowadays to brand and promote almost every product based roughly on the following four steps:

The product/service/promotion should either fully or partly be composed of Swahili words
English words should be "swahili-ized" as much as possible
The most important element of the (partly or fully) Swahili/Swahili-ized phrase is the verbs
The verbs must be nyambua-d in the most appropriate manner capable of attracting the potential market

Just switch on your TV or radio or flip a few pages of any newspaper and you will see these four rules in full force. This could explain the upsurge of the M-Pesas, the M-Keshos, The Hazina bank accounts and such. Its pure swahilization here. The strategy here may be to appeal to a larger portion of the population, those who feel more at home with anything other than English. No doubt a service such as M-Pesa would have sounded seriously bourgeois and elitist if the peeps at Safaricom could have settled for a English-based brand name. Now the service has outsmarted the banking sector so much so that banks like KCB are quickly adhering to the Nyambua Principles too with their Bankika bank account (ie. Rule 3 and 4 in action transforming the verb "to bank" to a Swahili verb nyambua-d in the "fanyika"cartegory thus "bankika").

Another motivating factor for Swahilization and Mnyambuliko tactics is also how appealing these verbs sound after undergoing the Nyambua process. A nyambua-d phrase sounds like a subtle command almost hypnotic to the reader or listener "Ponyoka", for example, is a popular nyambua-d verb in advertising promotions today mainly because it gets the part of a Kenyan's brain that is completely intrigued with free stuff and getting away with some loot of sorts that does not really belong to them or just stumbling upon some easy wealth pinging like its hooked on broadband. Isn't that why we have been calling the spate of G4S million shilling heists 'Ponyoka na Mamilioni'?

"Fichua"on the other hand creates an illusion of an intimate secret being imparted to you, almost like being told how you can own shares in Goldenberg International or something of the sort. That is probably why so many people do not find Royco's recent promotion, the one that went something like "Fichua GITHERI ushinde", even a small bit hilariously outrageous. Fichua githeri, really??? *LMFAO*

And then there are those ones that make the potential market sound like they have completely tupad mbao and they should style up and get the memo - "Amua" being a prime example of this category.

The way things are going, the more outrageous it sounds, the better the strategy, and even better if the persons endorsing the products have a uniquely nyambua-like personality. Pesa PAP! is now a household phrase. And who even thought of Blue Triangle Cement's "Gundua na Matendechere"? Here, you will hardly find an Eva Mendes look alike be endorsing products and services in this day and age of nyambua. It will most likely be Inspector Mwala and Papa Shirandula doing the honors.

All in all, I think its an exciting time for advertising and marketing in Kenya as a slightly more liquid lower middle class emerges leading to more and more businesses trying to grab a piece of the masses, those who speak Kiswahili everyday, those looking for a clean break or some opening to break through economic barriers, those who eat githeri at lunch time, those who never fail to catch an episode of Tafrija on Citizen TV etc. etc. Who said it would be easy wringing cash out of a Kenyan's pocket? If it means resorting to the old ways of Mnyambuliko, so be it!!! I still remain in awe of those who have this special talent and how now they have taken this talent to TV, radio, web and the papers too! Pongezi maradufu kwenu!!! Somebody cue that chick who used to sing weirdly at the start of that 90s KBC Kiswahili quiz show:

"Kiswahili Kitukuzweeeeee....
Kuwa ni lugha ya Taifa..."

*random blogpost inspired by the fact that nearly everybody in my twitter timeline is tweeting in Swa today*

Rape by Deception: Taking Soap Operas to the Courts?

noreply@blogger.com (willpress) — Wed, 21 Jul 2010 16:02:00 +0000

“Wait”, she said, pushing him back, “Before we do this there is something you need to know. . . I’m a virgin.” Her eyes shone with a mixture of anxiety, excitement and expectation.

His dreamy eyes looked back at her with the same fire and he responded in a husky, near-choking tone:

“Well, I’m a virgin too!”

- Excerpts from “Discussions” co-written with popeboyslim, yet unpublished.

Rape is classically known to be a brute affair involving a crude character forcing his/her will upon an unfortunate non-consenting victim, leaving the latter with physical and psychological trauma possibly for life. The setting for this act is perceived as totally unromantic and the perpetrator receives the wrath of society for the beastly act usually in the form of long prison sentences on conviction. However, with societal interactions becoming more and more complex, the crime of rape is gradually infiltrating the province of that class of acts associated with the most civilized, suave yet most deceptive of human mannerisms – Seduction and Romance. A school of thought is emerging with the argument that the various “sweet-nothings” and misrepresentations that one makes in the course of seducing one party leading to consensual sex are capable of classifying the sexual activity as rape, despite the apparent consent.

The courts seem to be warming up to this school of thought evident by Monday’s conviction of a Palestinian man by a Jerusalem court on the charge of “rape by deception” after he had consensual sex with a Jewish woman to whom he had given the impression that he was a Jewish bachelor seeking a serious relationship. The court established that the woman would not have consented if she had the knowledge that the accused was not a Jew and thus the sex was obtained under false pretences. One of the judges further stated:

“The court is obliged to protect the public interest from sophisticated, smooth-tongued criminals who can deceive innocent victims at an unbearable price – the sanctity of their bodies and souls. When the very basis of trust between human beings drops, especially when the matters at hand are so intimate, sensitive and fateful, the court is required to stand firmly at the side of the victims – actual and potential – to protect their well being.”

Notwithstanding the public interest pressure amid the history of sour relations between Jews and Arabs in Israel, the court’s decision merely represents both jumping too high and stooping too low when analyzing the question of consent in rape. Let me explain.

By attempting to break down consent into real consent and apparent consent informed by misrepresentations on the part of the alleged perpetrator, the court is trying to elevate the sexual act into a legally enforceable quasi-contract with criminal consequences on breach. How ambitious! This contract does not even have the characteristics of a normal contract where if one says YES they mean YES. Of course, for such an attempt to be successful, the court would have to analyse every single event and statement made prior to the sexual encounter. In this particular case, there must have been some amount of flirting that went on. Flirting as we all know involves the making of preposterous statements that shouldn’t even be reproduced in court.

My question to the court is whether they satisfied themselves that the Jewish lady consented to sex only on the basis of the accused’s claim that he was a Jew and not on the basis of statements such as “I would die for you, darling. I’m your Romeo, can you be my Juliet”etc. etc. etc ad nauseum. Did they establish whether the woman was just having one of those horny days where she just wanted to get some no matter the source? Or was the dude so fine that she just had to get a piece of that? Also take note that this woman consented to sex within the same day of just meeting the accused, raising doubts as to the seriousness of the relationship she intended to have. The psycho-social dynamics surrounding what triggers consent to sex are too many and hard to establish for any court without a mind reading device (in other words, ANY court). I shudder to imagine the kind of litigation floodgates this case opens – people can even be taken in for falsely representing that they are virgins or that they can give head if courts adopt in this line of thought!

At the same time, we also know that the values and principles that inform emotion-fuelled activities such as relationships and sex are too abstract (read frivolous) and subjective (read petty) to the extent that their inclusion in courts is tantamount to transforming the courts into talk shows. If courts start addressing things like “true love”, “the one” etc. what would Tyra and Oprah be up to? For the court to think that they are protecting “innocent victims” is quite fallacious especially in this particular case. The court has attempted to stoop as low as governing romantic interactions, a realm unfit for an objective umpire such as a court. They better leave it to institutions such as family, friends and perhaps even the entertainment industry through soap operas to try and instill measures to mould cry babies such as the one in this particular case into making sane individual decisions about romance and what not. Further, it is unfair to label one a (petty?) rapist in the light of such grey-area circumstances given the massive stigmatization following such a labeling.

But still, the sex must have been great…

MPs Salary Boost: Let's Use the Referendum to Our Advantage

noreply@blogger.com (willpress) — Wed, 30 Jun 2010 23:44:00 +0000

"Human nature is that employers want to pay less to their employees; while the
employees want more to justify the work done." - Walter Nyambati (Vice Chair of Parliamentary Service Commission).

Imagine that you are an employer of any given business venture employing thousands of individuals across the country. You are startled one slow Wednesday morning by one of your employees rushing into your office, looking like he is on the verge of imparting a very intelligent idea that could catapult the business to unimaginable heights of success. You ignore the fact that this employee never even bothered to give a courtesy knock on the door before bustling in and wait for him to catch his breath before he finally speaks.

“Hey, I was finishing up with my KRA tax returns when this AWESOME idea hit me,” he quips excitedly.

Ah, just as you had suspected. An idea. You lament within yourself on why you had never seen potential in this particular worker as you try hard to conceal your excitement.

“Carry on,” you say.

“Well, since my net income tax has increased since the Budget reading, I was thinking why can’t you increase MY salary to cushion my ass. Forget about the other guys let them suffer; it was MY idea after all, wasn’t it? They aren’t half as smart as me, no way! And si you know me and you are tight like virginity, eh? Just do me like that, boss!”

The mere guts of this employee will no doubt shock you while his unpretentious beleif that he should receive special treatment for having such selfish thoughts will disgust you as well, and this employee will probably be on the top of your TO FIRE list.

The exact same scenario played out yesterday when Parliament unanimously passed a report by the Parliamentary Service Commission that proposes to hike their already hefty salaries of Ksh 851,000 to Ksh 1.1 Million! They did this with a maniacal speed and enthusiasm, reminiscent of a hyena grovelling over a corpse and constantly looking over its shoulder in case vultures had arrived to compete for the leftovers. When it was all done and dusted, out they came ready for the cameras. These beggars on horseback emerged from the August House armed with a sole reason as to why they wanted Kenyans to dig deeper into their pockets and donate a further Ksh 300,000. The underlying motive quickly emerged in the many words spewed by the law makers – we had wanted them to pay tax on their allowances and this new development would enable them to do so.

What kind of goddamn reasoning is that? Even a 70 year old colobus monkey with sight and hearing impairment would find that kind of reasoning utterly senseless. The initial sentiment among Kenyans was that we wanted to these MP(igs) to pay tax on their current allowances as they stand today. For the MPs to vote to increase their salaries and then also unanimously voice that now they will be ready to pay taxes on their allowances means only one thing – THEY WANT US TO PAY THEIR TAX FOR THEM!!!! They do not want to feel the pinch of the tax burden as the average mwananchi does every month. Do they think that we are all so ignorant that we cannot detect the trickery up their sleeves? Alternatively, if they give us the credit of occupying the same tier of intelligence as them, what makes them think they are so special as to deserve such preferential treatment?

They say they “do a lot of work” and that the kind of responsibility they shoulder in the development of the social, political and economic spheres of the country cannot be even remotely compensated by the kind of salary they earn. What work? How many times have we seen empty seats when Parliament is in session? How many times have the few that care to attend normal Parliamentary sessions napping their blinking heads off? How many bring shame to our living rooms by the ignorant and misleading statements they make in press conferences every day, hoping to make to make the cut in the weekend’s edition of Bull’s Eye? How many times do they give themselves random vacations to eat nyama choma at Naivasha or cavort in the sun and sand of Mombasa in the pretext of going on a retreat to discuss constitutional issues? How many have pledges in Harambees form years back that they have not fulfilled? How many occupy their seats thanks to massive rigging and corruption?

It is yet another sad day in the history of Kenyans, an added reminder that we are being held at ransom by a handful of individuals with selfish interests .Where are we to turn to for redress? The two principals, perhaps? Kibaki will no doubt remain his silent self, Raila on the other hand will probably need the extra cash boost of nearly a million shillings to up his health insurance cover, now that little bumps in the car could mean brain surgery for him. Don’t expect much from the fence sitting Vice President Kalonzo Musyoka either.

On a different tangent, why can’t we be the ones to take control and for once put these people in our shoes and make them experience how it feels to be controlled arbitrarily? I suggest that we threaten to boycott the referendum process as a whole until they get rid of that report, and instead effect tax on their current allowances. I’m sure such a move would get the majority of MPs miffed and that would be a true test of the extent in which they value their country more than their stomachs.

Video Evidence: Edward Kirui Case Turning Point for Evidence Law in Kenya?

noreply@blogger.com (willpress) — Wed, 23 Jun 2010 06:30:00 +0000

The whole country is probably still reeling from the shock decision by the High Court in Nairobi to acquit, Edward Kirui (pic courtesy Nation Media Grp), a police constable accused of shooting two people at the height of the post election violence in January 2008, an act which was captured in a video recording. The catch – the serial number to the rifle issued to Kirui was did not match the killer bullet. That was enough to secure the constable’s freedom amid the hue and cry of “WHAT ABOUT THE VIDEO EVIDENCE????” in certain quarters.

Here is a glimpse of the video recording:

Yes, the video evidence clearly placing the constable at the scene and showing him firing at the deceased seems to have been shoved aside without much consideration, why was it not considered with some appreciative level of seriousness as the ballistics report had? This has sparked off a new debate by legal pundits trying to explain the reason behind this relegation of the video evidence. My own discussions have yielded a very shocking revelation into the awareness (or lack of it) of the legal fraternity and the public of legislation touching on electronic/digital evidence.

A vast majority of Kenyans (lawyers and members of the judiciary included) have the following perceptions:
1. Electronic Evidence – evidence in digital form be it e-mails, SMSes, video recordings, GPS positioning readings, chatroom message transcripts etc. – are generally not admissible in Kenyan courts.

2. Even if video evidence is admissible, it cannot possess similar weight to other forms of evidence such as documentary evidence and thus must always be relegated in favour of another form of evidence in case of conflict. It can only be admissible as corroborative evidence, that is, that type of evidence which is not stand-alone but requiring bolstering by other ‘more solid’ types of evidence such as DNA test reports, ballistic reports or witness testimony. This school of thought rests behind the mentality that “video evidence is like presenting a copy of Jurassic Park in court to prove that dinosaurs exist”.

However, very few are aware of the fact that the enactment of the Kenya (Communications) Amendment Act, 2008 – or in short, the KCA Act - in January 2009 had the effect introducing several new sections to the Evidence Act providing for the admission of electronic evidence, collectively known as Part VII of Chapter III of the Evidence Act. For good measure, the KCA Act also provides for the admission of electronic evidence in criminal cases, reflected by the changes it makes to the Penal Code. This fact immediately brings out the first perception as false since there is legislation that provides for the admission of evidence that is in digital form in Kenyan courts. This bit of the KCA Act went largely unnoticed due to the unfavourable publicity the Act had gotten in its previous life as the notorious Media Bill.

As regards the second perception, one would first have to ask him/herself: Is video evidence within the bracket of those types of electronic evidence admissible in Kenyan Courts? This prompts an analysis of the wording of the new sections of the Evidence Act. The KCA introduces Section 106 B which grants admissibility to “any information contained in an electronic record which is printed on a paper, stored recorded or copied on optical or electromagnetic media produced by a computer”. At first blush, the mention of the words “record” and “computer” sends alarm bells as a quick interpretation of this section would mean that only those types of evidence produced by a conventional computer as we ordinarily know it ( screen, CPU, keyboard, mouse assembly) is admissible.
The KCA Act and the Evidence Act make no attempt at defining “electronic record” leading to the most logical assumption that these are records in electronic form. Now, the KCA Act defines “electronic form”, with reference to information, as :

any information generated, sent, received or stored in magnetic, optical, computer memory, microfilm or similar device.

Thus the term electronic record would include those records generated and stored by media other than the conventional computer and this includes digital video recorders. Another sign that this is the correct interpretation of the term is shown by the KCA Act’s rather wide definition of “computer” as:

any electronic, magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, software and communication facilities which are connected or related as a system or network.

As regards the whether video and other such types of evidence is inferior to the traditional forms of evidence such as documentary evidence to the extent of requiring corroboration to be of use, one would have to refer to past precedence. Unfortunately, the Edward Kirui case is the first such type of case in the Kenyan jurisdiction. The general traditional trend has been to clump video, graphics and audio evidence as real evidence which usually has to be supplemented by witness testimony to be relevant. The recent trend, especially with the enactment of e-evidence legislation in many jurisdictions, is to instead treat this type of evidence as being in the same class as documentary evidence and thus being able to stand on their own. This shift has been motivated by reasons best revealed by the words of a South African scholar Hofman:

"This view (that graphics, audio and video are regarded as real evidence) is conceptually simple and appeals to those who dislike excluding any evidence. But it does not take account of the way graphics, audio and video are, to an ever-increasing extent, recorded, stored and distributed in digital form and fall under the definition of a data message. This means that graphics, audio and video now resemble documents more than the knife and bullet that are the traditional examples of real evidence. In data message form, graphics, audio and video are susceptible to error and falsification in the same way as data messages that embody documentary content."

The trend is thus to classify video evidence as an electronic document of sorts and thus, in cognition of the great ease at which they can be modified or altered, to also subject this type of evidence to certain requirements to ascertain its authenticity and integrity. The value of video evidence has been outlined by judges in other jurisdictions (see S. v Baleka, January 2005, Contemporary Labour Law Vol.14 No.6, 5) ) as among others:
• Not fading from human memory as human testimony
• Providing a clearer objective view than the account of a human being
• Being able to retain not only the words but the non-verbal communications of those on camera

The nagging question concerning the Edward Kirui case is whether Justice Fred Ochieng’ dismissed the video evidence on the ground that such kinds of evidence was not normally admissible without corroboration or whether he considered the video evidence admissible but not adequate to prove the identity of the killer of the deceased. The decision seems to be based on the first sentiment since there were witnesses who claimed to have identified Kirui from the video recording, a fact that would give the recording more evidentiary weight than the mismatched serial numbers in the ballistics report if Justice Ochieng’ had considered the video evidence as stand-alone evidence subject to the observation of an reasonable, objective person. On the flipside, the judge did not address the question of the integrity and authenticity of the video recording indicating that all parties considered it real evidence and not as a data recording capable of manipulation.

Summarily, this decision casts in doubt the admissibility of video evidence in particular and electronic evidence in general as well as the standards for measuring the evidentiary weight of electronic evidence. It reveals the underlying unpreparedness of the entire legal system in dealing with matters concerning electronic evidence. If such a seemingly straightforward case causes us to scratch our heads, then I shudder to think what future cases, such as the post-election hate messaging that involved a sheer number of electronic media and participants, would cause a problem for prosecutors and judges alike.

The legal system should wring itself free from the traditional rigid approach to evidence which gives much preference to paper-based and other traditional forms of evidence before they are swept by the Information Technology wave that embraces use of ICTs in nearly every sphere of life. More and more crimes will be caught on video. There will be an upsurge in digital crime. The best evidence of infidelity may soon turn out to be a video of one’s spouse caught being unfaithful. Electronic evidence is silently creeping into the stuffy and seemingly already crowded room of evidentiary relevance and yet nobody seems to take note. We best make ourselves ready.

Lights Please: Of Saxophones and Bull's Eyes

noreply@blogger.com (willpress) — Thu, 18 Feb 2010 12:30:00 +0000

… she couldn’t hear me
I told her all about how we been livin’ a lie
And that they love to see us all go to prison or die
Like baby look at how they show us on the TV screen
But all she ever want me to do is unzip her jeans
…
And all that next shit I was previously talkin’
Is now that wet shit that I’m currently lost in
And while that sweat drips, I am reminded
All the times my brother told me that pussy is blindin’
I’m findin’
The more I grow, the more y’all seem to stay the same
…
“I know you wanna change the world, but for the night please
Just reach over and hit the lights please”

– J. Cole

Among the many many many peculiar habits Kenyans have (apart from resigno-mania, remember-phobia, sending kidnappers ransom money by M-Pesa amongst other things) perhaps the most peculiar is the way we feed hungrily on what can be termed as scandal. The media understands this full well and makes sure that we get our daily dose of sakata ya mahindi and a “few”million shillings here and there being made away with and the Gossip column on Pulse magazine. The media itself sometimes falls victim to these spectacles, all the more for us to enjoy and have a good laugh about in our facebook or twitter accounts.

The kind of scandal we tend to enjoy will depend on the various age groups we are in, of course. You don’t excpect a 65 year old pensioner to prefer Gossip Girl over Naija flicks now? The interesting part of this distinction is that one age group will tend to wonder why the other does not participate with as much zeal when it comes to one scandal or the next. The events of the past few days provide an excellent environment in which to witnesss this phenomenon. Over Valentines, the two principles of this country, Prime Minister Raila Odinga and the President, Mwai Kibaki were engaged in a battle of sorts concerning who had the power to suspend certain Ministers and civil servants implicated in corruption scams of shoking propotions. In other news (or rumours), allegations about a popular news presenter quitting her job and abandoning her fiancé due to relating to a suspiciously named Church have also been doing the rounds and has been the subject of furious discussion all over Twitter and Facebook. Obviously the older, more responsibility laden Kenyans have more interest in the corruption scandals than intruding into the lives of ‘celebrities’, whose lives they cannot afford to emulate without being handed a bankruptcy order .

It is from among this group that an interesting question arose in the Church-Presenter debate, going something along the lines of “What if younger Kenyans had the same zeal for following stories of grand corruption and econo-political misdeeds as they do for getting a low-down into the private lives of news presenters and musicians or golf players?” The younger generation (circa 1980s) seems to have little or no interest in what the older peeps perceive as the real issues. This same younger generation is wondering what this grumbling older generation have been doing if they really have been keeping in touch with the “real” issues and the general quality of life has not changed at all. Let’s make a somewhat shallow analysis of these two opposing yet congruent views.

We, the younger generation have been born into a state that has been on a constant downward fall even before our existence began. Born in to Nyayo milk (RIP) and Nyayo Buses (RIP) and waving flags and singing songs for a man with an ivory rungu, a man who our parents taught us to revere with demi-good like awe. This same man, we later learnt, along with a bunch of his friends took up most of this country’s prime land and is now selling it back to some of us who have been labelled “squatters”. We have been born into a state where the only examples of success we see are those who rise through one act of corruption or a series of electoral fraud and crime of every imaginable scale. We see them every day during news broadcasts, in the business of running this country. To most of us, it’s just as shocking as the first day we emerged from our mothers’ wombs. However there are those amongst us who are awed by the antics of the older thieves and murderers in politics and the like. These are quickly taken up and apprenticed by the wazees for later packaging as “future leaders”.

The state of affairs is too unbelievably harsh for the majority of us to face, young or old. Your everyday average Kenyan is like a man in the first stages of suicide – he is in denial. Blatant violations of his rights and privileges take place every day and, to add insult to injury, these acts are replayed for him on TV screens and radio programmes, yet there he sits, enjoying it all, very much detached from the realities. This is why, no matter how much we try to deny this fact, it is the older generation that will keep running things in this country for quite a long time. Younger Kenyans have little or no interests whatsoever in who will determine the economic or education policy for the next five years after an election. Their (very limited) political party affiliations will arise either from the archaic paranoid and tribal notions inherited from their parents just as they inherit the type of religion they should subscribe to, or from meagre economic benefits they accrue in terms of a few hundred shillings for staging a protest in favour of an issue they know little about. We are so out of touch that a matter such as the Al-Faisal deportation procedure will take us to the streets as opposed to the fact that somebody implicated in allegations of corruption decides to stay in office and possibly influence the investigation of the same. It tickles us, instead of worrying us, that a Kenyan out there is so hungry that he would rather chew up his copy of the Harmonized Draft Constitution than read it!!!

We instead chose to run, to escape far away from these problems. We run to drugs, alcohol, sex AND religion. Its cooler to get high and get a good fuck on the way there than think about the Constitution. That aint our job now, after all what did we elect MPs for? Wasn’t it a genuine worry that the rationing programme by KPLC would lead to an increase in irresponsible sexual behaviour? Come Sunday after orgasming the weekend away, we get engulfed in praying for a miracle to save this country, a miracle to get us where Kamlesh Pattni was eight years ago so that we can also make it in the Corruption Hall of Fame. We do not find it amazing that we cannot agree about terrorists and Kadhi Courts while the Council of Imams and Preachers of Kenya and the National Council of Churches in Kenya can mobilise us to violently root out alleged homosexuals? We escape in the fantasy world of soap operas, second rate reality TV shows and Bulls Eye, thinking that someday somehow; somebody will sort our shit out. We borrow this cynical, escapist stance from our older brothers and sisters who were and still are caught up in the illusion that independence would solve all of our problems. Still caught up in notions the absolutism of the presidency and tribal mistrust.

The question will thus arise of who is better placed than the other in a firing squad – he who chooses to close his eyes and imagine that he is having a bad dream or he who stares right into the eyes of the men who are about to shoot him with the firm belief that help is coming from nowhere at all. No matter our remedy, false faith or steeping ourselves into fictional and temporary remedies is not the answer. The question to ask is when will he who has closed his eyes open them and join his colleague in putting up a fight to at least strike some fear into the weak thieving cowards who have held them at gun point for generations now. That is the question. For now let us continue playing our saxophones in the Finger of God!

Why I Don't "Listen" to Local Gospel Music

noreply@blogger.com (willpress) — Mon, 14 Dec 2009 11:14:00 +0000

"Sing to the Lord a new song..."

- Psalms 96:1

I think its safe to say that I am a fairly religious person. Right from childhood, I was inculcated to the schema of a Superior Being by my folks, a thing my infantile mind percieved as completely natural. Later, I was to realize this Christianity was more historical than natural. In fact it was part of administrative "extras" imposed by our colonizers in the name of civilization. Outside this paradox was the bigger argument of atheism versus possibilianism versus religion. Confusing as it all is, I have chosen to hover on the religious side of things for certain unexplicable reasons such as the idea of God being comforting. But I am not your perfect church type. I'm a sort of religious voyeur - the few times am in church, I cant help notice grown men staring at other people's daughters in a coveteous fashion right under the noses of pastors who may or may not be strugglin to put everyone to sleep. Still, I'm also sometimes in need of spiritual fulfilment in various forms including gospel music. However, I am finding local gospel moving further and further away from satisfying this need. Let me expound.

Big Bang
Gospel music these sides has come a long way. Remember Joy Bringers on KBC or power couple The Mwauras' Praise and Worship series? What about Reuben Kigame and Shari Martin's Rafiki Pesa hit and all those Prison choirs? Everything about it tended to target mature audiences and the kids were contented with Sunday School classics. Solid themes revolving around Bible verses was the norm. A few blips of rebellion in youth wings of some churches didnt get enough hype until foreign influences came into play. Ron Kenoly, Mary Mary, Kirk Franklin et al precipitated a religious big bang with a youth agenda, paving way for new age pioneers such as Henrie Mutuku and Rufftone. This in turn drew the younger generation to more interesting ways to explore Christianity.

Commercialization
Lets not forget that at the same time secular music was also developing and soon eclipsed gospel productions. Ogopa brought kapuka, taking people by storm and leaving our gospel strategists wondering what to do to fish more men. It was the release of Esther Wahome's Kuna Dawa that provided the light bulb moment. The single acquired a cult-like following from the secular crowd and it was almost immoral for any club or pub or secular radio station not to have it on heavy rotation at one point. Aha! A way had been found! Gospel producers and artistes' renaissance had a lot to do with the money and exposure kapuka musicians got. They wanted that too. . .man must live, no? It was something like the current trend of our religious leaders tryin to vie for public office - a capitalist lunge for economic survival!

The strategy change was simple. Gospel music was now engineered to contain what I call crossover potential. New age gospel singles and albums were created from a secular template. They adopted the architecture and design of a secular track with an attempt to staple a spiritual message atop it. This has so far manifested itself in various forms:

*Production/Arrangement: Using essentially secular music arrangement techniques. MOG's hit Let Him Go attained its popularity not from its content but from its use of the Diwali riddim also used initally by Brick n Lace for Love is Wicked. Autotune use is gaining fast popularity as well in gospel production.

*Secular in Past Tense: My good pal Philip Mwaniki refers to most gospel kapuka as "secular music in past tense". By centering on themes of past lives of partying, sex, alcohol, drug use and the like, these types of songs get good reception from the generic kapuka lover who just wants to hear "pombe, madem, sigara kubwa" and such catch phrases being mentioned.

*Lingala Systems: When was the last time you sang along to System ya Kapungala? At rave, most probably. Any Congolese would also be shocked that coupé décalé can be used for a gospel track. Notice how different Congolose gospel groups sound from their secular mates eg. Makoma.

*Lyrics: It gets hard to point out a song as gospel via the lyrics these days. You are often left guessing until its blatantly clarified that the song 'imebarikiwa'. Case in point would be Chit Chat's chorus to its debut single which goes something like:
"I la la la la/ I like your shoes/ the clothes you wear/your style. . ."
Now that sounds like a chorus Lil Wayne would endorse. Holy Dave makes it worse by spittin some ambiguous verses. The rest of the hip hope fraternity have fallen into this trap.

Paradox?
At the end of the day this trend hurts the youth gospel movement in Kenya. Many of those who follow this movement may do so for all the wrong reasons - to be part of an inverted coolness... Proponents of this trend defend it by saying one doesnt have to mention God or Jesus in a gospel track. They claim that new age gospel tries to pass a message in a way the youth can relate to and subtly introduces to a more flexible relationship with God. Really? It would be quite far fetched to imagine that a drunk man at Grill House singing along to Kuna Dawa will reflect on the intended message.

Am not trying to be conservative in any way. I think we have lost touch with gospel and somehow the initial objective is heavily diluted by how it has been packaged. Look at how other international gospel artistes do it. Mary Mary recently acquired a crunk sound but they still manage to pass clear cut messages and sell records while they are at it.

We are in the Grey Area Era of Gospel music in Kenya and that is why when a gospel track is playing somewhere, I will be in the vicinity with a glass of vodka in one hand, weed in the other and rubber dubbing some woman's ass...

The Times They Are A-Changin' : LOL???

noreply@blogger.com (willpress) — Wed, 28 Oct 2009 01:08:00 +0000

Come mothers and fathers throughout the land
And don't criticize what you cant understand
Your sons and daughters are beyond your command
...
For the times, they are a-changin'

- Bob Dylan

Individual to individual human being communication has come a very long way, fact. We should pity our Neanderthal anscestors to whom communication was most vital during mating seasons - whose head is the biggest, who can throw a stone farthest, whose genitals. . .- yes, John Locke, those were short, nasty and brutish times. We can also stop by the south african deserts and admire the Bushmen and Hottentots who boast an alphabet of click sounds à la Gods Must Be Crazy? Its hard even distinguishing an abuse click from an appreciative click. Now imagine trying to propose to a rugged haired, bare breasted Hottentotty:

"Click click click click click?"
"Click?"
"CLiiicK"
"cLIcK!!! CLick, ClicKKK!"

Shit. At least we have managed to evolve out of that and now can utilize our tongues in more ways than offering cunnilingus. We can finally SPEAK! Huyay! We can also write and type! Thanks to Western "civilisation" campaigns, nearly the entire globe is trapped in the phonetic dungeons of English, French and Spanish. We don't have to be born in the same kraal to understand each other, aint that swell?

Another fact is that we all don't grow old at the same time. There will always be an older generation keen to pass down their (sometimes archaic) morals and mannerisn to the younglings who will obviously set up resistance on various fronts. We sneak out of the house via the fence to sample date rape drugs in the club. Girls make out with girls and well, boys give each other anal exams.

On the communication front, the resistance is in the form of subjecting the wazee to lingual alienation via the use of slang. Speaking in code so that the peeps who have not "chanukad" to cower in shame for trying to invade the privacy of the conversation. According to the auhoritative Sheng Website , Sheng was born out of the need to go into "stealth mode" by kids of early Nairobi immigrants of the 60s whose house were usually one or two roomed houses thus what you said everyone heard. A very noble cause, dont you think? Look, we have even imagined to convince these aged adults that cheating in KCSE takes place between 2pm and 5pm thus no more afternoon exams! Duh, cheating takes place all the time!!

A different form of slang, however, has began to develop with the advent of technology. Now that the average young person communicates via mobile phone or social networkin sites, the central aim of communication has become INSTANT MESSAGING. Delivering the message as fast as possible, and somehow thinking that you can squeeze your life's thoughts in 160 characters. Speaking and writing in Acronym. The trend often tends to bite us in the ass when we end up not communicating at all! I have now gotten used to messages, wallposts and text messages like this:

OMG WP dd u c dat BFF o myn? She GBROTFLOL, SMH!

Its very confusing if you dont ake a spirited effort to catch up. LOL is the current favourite. Laughing out loud. I know some people who cant write three words without inserting LOL. Kwani, have you been taking an overdose of nitrogen oxide?

"I HATE YOU. . .lol!" Really?
"Am pregnant with your twins lol!" Seriously?

Why not just stick to the more humane Hahahaha or more bestial Bwehehehe. At least those have some life in them. LOL sounds like something R2-D2 of Star Wars would say if tickled.

And they vary with taste and purpose. OMG has a sort of blonde connotation to it, I have been made to understand. WTF/WTH have replaced all the exclamation statements ever thought of. Whatever happened to Holy Cow? It took me forever to understand SMH, kumbe its something to do with shaking the head. GBR/GNR - Got a bitch/nigga rollin - very queer too. I've never seen boys in an Always ad. . .never!

They are even coming in tribal slips now! Ati LOL is the same as GOR - Gutheka out Roud, and in Naija its translated to UGKMO - U Go Kill Me Oh, and if youre from the lakeside its NMA - Nyiero Matek Ahinya.

Lets not forget NKT!! and MSCHEEW!!! often used by mamsilas in their udaku sessions. How do you even pronounce those???

Its an unstoppable wave. In three years, I'm predicting the pressing need for an Acronym Dictionary or else we will never manage to understand ourselves. The greater concern however is how these short codes compartmentalize and curtail our thought processing and eventually limiting creativity. So "Oh my goodness fuck me sideways, you have done something very stupid!" is relegated to a simple WTF!! Don't be surprised if kids in 2030 will be LOLing instead of a e i o u-ing.

In the meantime, I'm being updated by Anyiko and Fena on the latest new Acros. . . So, TBNOBIGHAD. Don't ask me what that means!!

Nakufeel vs. Nimechill

noreply@blogger.com (willpress) — Fri, 21 Aug 2009 13:50:00 +0000

Everytime am back from the long May - August holidays, something very interesting changes in the university's demographic. A good number of girls (increasing every year) show up glowing, noticably plumper with their bellies distending - very, very pregnant! We have accepted and come to terms with the rampancy of it. It is now almost a fashion statement around here (we call it "going to the beauty spa"). Maybe we can also attribute this to the past few extremely cold months, ama?

This semester, of those who have gotten the spa treatment, I kinda know two of them on a personal level. The first chica, let's call her X, she's a piece of work. She has an innocent baby face and a petite 5ft 4' body that reeks of sex appeal which she's not afraid to flaunt in tiny skirts and low cut tops. In the second week of her freshman year, she was warming the bed of a student leader and moved on to her next "victim" the following week. And she has had many victims. No matter how many guys you hear she been with, her baby face makes her appealing still. In the early days, I'd taken her to the club after some heavy drinking - I never saw her again until early the next day - yeah, somebody else had chips fungad her. I'm geniunely shocked seeing her now plump and glowing like that. I was thinking since she was used to these things, she had the know how on contraceptives and the like.

The other mamsila, Y, is an Alliance Girls alumni and made it directly to law school with straight As. She's very uptight. Me and my boys tried throwing vybe her direction but her defence mechanism shot them all down. For three years, she was in the league of untounchable women. Fancy that now somebody took her to the spa.

So its clear and evident. There is a worrying and indiscriminate upsurge in unwanted pregnancies. Even the seemingly "good ones" are caught in the trap. And all this is happening smack in the face of spirited and determined campaign for abstinence or at least condom use. Question is what is wrong?

Its actually funny how the Condom and Abstinence ads fight for prime time spots. At a certain point in time, the Nimechill, Nakufeel, Trust and Femiplan ads were running almost back to back! Mixed messages or what? Do you want us to chill or do it?Apparently the people controlling these campaigns seem to be losing the war on delaying the sexual debut. The casting for the Nimechill serves as sufficient evidence. What are 14 and 15 year olds doing on TV saying they have decided to chill??? Forget kalongo and cha mama, that shouldn't be an age anyone should be having proper sex at!!

As regards the Nakufeel advert, I'm sorry to poop on it but normally what happens when relationships are as deep and commited as depicted in the ad, people tend to become overtrusting, if not careless. Since we are faithful to each other, we've taken an AIDS test and we negative why not hit it skin to skin on her safe days and take P2s just in case?

Yes, the EC pill. Very little is said about the use of this form of contraception notwithstanding the fact that its widely used. Just ask your local chemist how much P2s he pushes across the counter in a day alone. Many people are using these pills improperly thus unwanted pregnancies. There should be a more agressive campaign on EC pills than even CDs so that people can get a wider appreciation and its effect. . . I believe this can move more and more EC pill poppers to start serious use of condoms.

Reproductive health advertising is becoming a sort of sexual Tower of Babel leaving some young adults quite confused.Anyways, I'm sure X and Y are watching the KTN feature on midwifery very keenly. Good luck to them. Can't wait to be a brand new uncle again.

What's In A Name?

noreply@blogger.com (willpress) — Wed, 19 Aug 2009 16:04:00 +0000

Inspired by a conversation with Pope Boy.

For a long time, I have been baffled by some phenomena in movies and series about Africa. First, the kind of names they come up with for fictional African countries and kingdoms.There is just something about the syllablles they pack into it that reeks of a sort of "Primitive" innuendo. We can excuse the "Phantom" comic strip for their reference to Bangalla - sounds like something a witchdoctor would say to rid you of a grandmother's curse. That was set a long time ago. But what do we say about the more recent names? Take for example West Wing's reference to a West African state known as Equitorial KUNDU. Kundu??? Lol whoever came up with that name? The closest African word to that known to me is KUNDE and you will be hard pressed to find a people who will name their nation after a variety of bitter herbs.

In Casino Royale Daniel Craig has a run-in with some guys from Nambutu ... hehe probably a mix of Namibia and Mobutu Sessesseko.

And I have just started watching 24 season 7 where the US is held ransom by a rebel leader from Sangala .

Another thing. The characters in these Western productions tend to have a stereotypical form and attributes. They are usually either savage looking or savage sounding, and the language they speak is either French or Kiswahili even if the particular story is based in Egypt. It is these quick copy paste stereotypes that Western producers need to get rid of. In as much a I respect artistic freedom, is it so hard to do some research or consult some people adept in linguistics or some other relevant field? We all remember the gaffe by the Russians when they decided to name their joint energy firm in Nigeria NIGAZ!! Am sure that did nothing to soften Russia's image as a place rampant with Racism.Or is it up to to us to change these stereotypes?

Season 7 of 24, however, surprised me by placing the character of an African leader as actually having the financial capability to bully America (something the likes of Museveni have only dreamt of no doubt).

An interesting depiction of Africa from the blaxploitation era is 1973's Shaft in Africa. I first saw the flick a few months ago on TCM, its kinda hilarious, there's a scene where Shaft fights some peeps naked and its depiction of modern slavery is also interesting. The plot is triggered by the murder of the son of an EMIR in a fictional kingdom in East Africa. You will spot some of the stereotypes I have mentioned in its trailer below:

To Kill A Mock Exam

noreply@blogger.com (willpress) — Wed, 15 Jul 2009 08:15:00 +0000

I hear that the lil kids be starting they mock exams around this week. Just like every candidate in their time, the stress is sinking in deep, given all the support groups that I am seeing cropping up on Facebook at the moment. Its a period for lots of rehearsals for every player in the sector. The kids will be hoping to secure at least a good index number because apparently, examiners look at that sort of thing when marking. A student with index 001 may for example be able to use the word "goin" and the examiner will be thinking "Ah, reported speech of sombody speaking slang, bright student trying to spice up his piece", but index 300 will most certainly be panalised for wrong spelling. Yeah its a bitch of world... Another objective for the kids is to perfect their copying skills in readiness for te main event, the KCSE exams coming later in the year. Besides didn't Steadman and Co. prove that the 8-4-4 system is rotten and has ruined many a potential genius? Well, last year a few pals of mine did a quick harambee over the holidays and bought a couple of Blackberrys for the purpose of copying and consulting during KCSE. Its amazing the lengths that Kenyans would go to pass their exams, its no wonder somebody said kenyans are the most overqualified persons on the globe!

Things are a bit more serious at the Ministry of Education. They will most certainly liase with the cops or bring an easier paper this time around to avert the possibility of a repeat of last year's Pre-Mock Violence, perhaps an almost futile task since it has become almost part of some schools' culture to go on riot before every Mock exam.

What I am wondering however is whether people will still be sending each other success cards with as much vigour as them olden times when if you didnt get something like this one below, you would doubt your existence in the social stratum of the time:

I particularly would like to wish these summer bunnies the best of luck: Ying, Gladwell, Kid Cudette [Joy Mwaniki], Cynthia W and basically everybody from Kianda Massive.

Staying on matters education, I really find this programme on KTN called The Class (airing Tuesdays 9.45pm) extremely funny. It really centres on the DALC education programme. What I find funny is the guy they always interview on each of their episodes. Dr. Humphrey Oborah, Chief of Mission at DALC. Hahahahahaha! First how he sounds, the pseudo-Luo accent just kills me rotfol...then what he says lmfao!!! Very interesting chap. He was talking about the missed opportunities experienced with the normal 8-4-4 system:

Here's a chap...He could have been a dokta , he could have been a medick but he's now kat off because of the system and we are seying this is not rait!!

Burying MJ: Recreational Grief?

noreply@blogger.com (willpress) — Wed, 08 Jul 2009 10:19:00 +0000

When he died on June 25th, the world was literally taken to a standstill. Every single social portal echoed his name.There were literally millions of Google searches about him per second that Larry Page and his crew had to block all "MJ" search queries for fear that the servers would start chewing themselves up. Bing could not have come at a better time either. Twitter, Facebook and the entire blogosphere was buzzing with an energy never seen before. The entire world declaring their undying love for a man many thought "would never die". Never had there been such a worldwide outpouring of grief since the passing of Princess Diana and perhaps the King of Rock and Roll, Elvis Presley. Yes, that is what WE did...Fast forward to yesterday's memorial service attended by thousands and watched live by millions all over the world (including my old man who I have never seen him interested in anything beyond News at 9 since the early 90s and my mom who almost threatened me if I didn't sing along to Heal The World!!!!) and chaperoned by a star studded line up who showered his mainly plastic corpse with praise, tears and lovely anecdotes. And I sat there, watching all this go down, i couldn't help but think what a bunch of professional/recreational mourners that we have become.

The reaction to MJ's death is not so abrupt per se..the fuss with celebrity deaths has developed from a very long time ago to what it is today and to me shows the underlying changes in the perception of the expression of grief closely linked to the shift in personalities who affect our lives. Back in the day the personalities who people felt they could at least grieve for were more of those who brought real developmental change to us as opposed to those who merely just entertained us. Quick example would be the death and sombre , dignified funeral of Winston Churchill, that was followed by millions around the world. Grief was very much connected to the ties that bound society together. Remember how the S.M. Otieno burial case quickly escalated to a deeply cultural and sociological issue?

Nowadays though, I think that grief has been trivialised to a great extent whereby anybody and everybody can claim entitlement to genuine grief, or just tag the phenomenon of grief on themselves by outward expressions through status updates, television interview and what not. This is just a sign of how loose the ties that bind society have become. I remember the MJ memorial how a kid came up to say that MJ was his hero yet he was probably two years old when MJ released his last album. Grief has become more of recreational than anything else especially as regards celebrities. We have seen it all through the current times from Marylin Monroe, Elvis Presley, James Brown, James Dean, Jimi Hendrix, Marvin Gaye, Tupac, B.I.G., all through to the Princess of Wales etc etc. Their deaths have become more of a "limited edition extra package" to what they have been giving us. Just like the sex tape leaks and charity events or the children they adopt. The fans are never satisfied. In fact, more and more of these celebrity memorials have the same atmosphere as a pop or rock concert - where people of like minds come together to express themselves and be part of the raw emotion.

Another worrying trend is that due to the liberalisation of the media, increased use of the internet and social networks by us and by these celebrities to connect with their MARKET ie. YOU (yes you're just a statistic), we begin to have a false sense of intimacy with these personalities. And thus develops what I would like to call virtual emotion and virtual connections with people we know that we will never met or interact face to face in a natural manner.More and more, we are looking into the eyes of people we have never met, as opposed to those sitting side by side with us and its a very sad state too.

We also know that MJ died a very lonely and lost man, struggling to redeem himself to the world which seemed to have completely written him off at that moment in time (I read about an article reviewing a concert he performed alongside Justin Timberlake in 2001 or thereabouts and the critics described him as a deer caught in headlights), the same world that was yesterday gathered by the millions before his casket to mourn. I wonder how he felt as the vibrations of the speakers jolted his box, as Usher was moved to tears, as American Congress was pondering making him a hero, as my mom sang along to Heal The World...He must have been wondering were the hell we had been hiding at, I guess...

Anyways, I must agree with @kenyanpundit, much kudos to Brooke Sheilds, her euology of the man really touched my single emotional nerve. She is about the only person there who humanized instead of idolized MJ, and, through her, for the first time since it all started in July 25th, I felt that we were burying a human being!

Back to realty now: Who thinks the ntv ad with the "Tombraider-Matrix" chick is sexy? I really need your opinions on this one lol!

Capitalist Consumerism: New Opium for the Masses?

noreply@blogger.com (willpress) — Mon, 06 Jul 2009 07:47:00 +0000

"Excess and deficiency are equally at fault" - Confucious

Three days ago am chilling with a cousin of mine in a sugarcane plantation his father owns. . .so he whips out a brand new iPhone and proceeds to IM one of his many Adhiambo Siandas. He goes like:

"Omera look at the speed of this thing! 3G teknology is da bomb!"

I hasten to add that 3G ain't available (yet) for Orange subscribers in this part of Kenya however cool his device is.

"Then why are the messages coming so fast?"

"Dunno, she could be the Usain Bolt of typing"

He refused to give in and we had a huge argument about his phone being as good as my mkebe . But he still insists that since he has owned more phones than me this year alone I must be the ignorant one. Besides, the TV doesn't lie. .when they say 3G, its 3G!

This sad scenario is replayed everyday in modern Kenya in a trend that is commonly known as consumerism. This is where you save your ka small allowance to buy the Gucci bandana you saw in the Soulja Boi video, or when your wife dumps the toaster (which was in perfect condition) for the new one that can be remotely controlled via bluetooth one etc. etc. In short, this baby of capitalism isolates the consumer to a certain pre-set lifestyle modelled by synthetic ideals of exclusivity, status, coolness and the like. Thus, a Londoner could be wearing the exact same type of shoes as say, a young girl in Londiani. . . Karl Marx aptly called this concept "Commodity Fetishism". What really started this madness?

Struggling to save face after losing long expensive wars, European countries in the 20th Century resorted to imperialism ie. Colonising new territory. Here, the discovery of vast resources and labour (in the form of topless slaves, with their quivering members peeping from their loincloths, a sight which may well have influenced the term fetishsm by Marx) rejuvenated industrial development. These gains trickled down to the individual and the new modus operandi of status was wealth acquisition.

Inversely, Western civilization also awed them "savages" and their reception of this new type of education cemented their resolve to get rid of their "primitivity" and be able to pull of a more refined lifestyle. The main beneficiaries of this were the same political leaders struggling to secure our independence. This is evident with the speed at which they acquired huge tracts of land and property once they got into government, forming the first indigenous elite class.

With equal speed, a middle class also sprung up in the 70s and 80s. They were young, educated, energetic and would stop at nothing to get to be part of the more privileged of society. They went to the same discos, bought the same bling and bellbottoms as their richer pals, who had begun to be influenced by growing communication and foreign education.

Today, the situation is more pronounced than ever, especially given that globalisation has become a fact of life. Our middle class and no doubt the lower class is so rampantly physically the psychological aspirations to join the burgeois prôpes. . .

The psychological rationale of this the same thing that motivated inter-racial sexual conquests in the apartheid era. . . By looking and behaving like the "others" (read obnoxiously rich motherchods who we see everyday on MTV and Reality TV who rake billions per month) we will get to acceptance of some sort. . .a "Dr Livingstone, I presume?" kind of moment.

Clearly, there's nothing wrong with staying on point with the trends, and having ambitions... But as we buy them Gucci bandanas, buy CDs we listen to once, or unnecessary gadgets, take out unrealistic mortgages, squeeze life savings to buy that flashy car while the true owners of production (multinationals like Nokia, Apple, Toyota etc.) rake silos of cash out of our insatiable desire, do we ever to stop to think of what we have transformed into? Do we ever ponder that this could amount to self-rape, indirect exploitation? Is unfettered exercise of capitalism and its nasty lil sister consumerism advisable for Kenya and indeed Africa? Who is the ultimate winner after Wahi Kuwahis, after the Kwachuas? Do you ever ask yourself what happened to bread at 5bob, Johnny Walker at 300bob? Is the ultimate satisfaction getting hold of the CREAM dollar bills?

Eat and drink but exceed not and become extravagant - Quran 7.31

In summary, due to advancement in communication, easy flow of information and other trappings of globalization, Africa and the 3rd World is now caught in a nervous race to catch up with the progress made by the West so that they too can also look, feel, sound and even smell "hip, modern and/or cool". Its quite a shock to most African economies, the fact that, in a few decades, we are on the brink of achieving a societal disposition that took Western countries hundreds of years to achieve.

However, when it comes to differentiating Westernization and Modernization the line becomes a bit blurry. We are stuck on activities that have ceased to become good or healthy practice in the West. Why? The main reason is that, even though information is much easier to access, the owners of production are keen to replicate their ancient commercial feats here. They buy as much airtime from our media as their budgets can allow. Buy this junk, get more junk free. Your Facebook sidebar and your prime time TV ads are full of them. They determine what is good and bad, and the consumer has virtually no control of this. With time, a keen individual will notice these pre-set trends in:

The public attitude towards food & food supplements
We have embraced fast/junk foods, a daily diet to many of the 9-to-5 hustle, quite oblivious of the fact that these foods are being frowned upon in the West for their negative impact on health. Thus, it is hard not to notice the preference of sugar-coated cereal to say, whole grain porridge as well as our version of KFC, kuku porno and fries from Kenchic, to something more healthier a few hours later. The result of this is quite evident as research shows that more and more people in Africa are dying from diseases relating to fast foods. The term Know Your Status in Africa has been used in reference to HIV/AIDS, but if we extend it to wanting to know our diabetes/coronary tract/obesity etc status, one would be surprised at the number of positive results.

Early child development is also taken a step back when many career or upper middle class moms abandon breastfeeding too early to take care of business or get that tender signed. Much kudos to Safaricom for trying to sort this out by providing space for their staff to breastfeed at work.

Over-commercialization
Do you realise how virtually every single thing/activity under the sun has been commercialized? From the second you wake up, somebody somewhere has decided through strategic marketing which alarm clock should wake you up, what weave that chips funga lying next to you should be wearing, the type of condoms that you encounter on the floor and what mobile network you should be on when texting your friend that there's a complete stranger in your bed. Those are just a mere two minutes of your life. Should I continue? OK, here's some more from the top of my head:

Sex has become a commodity and a marketing tool at once. Many of us now have jobs courtesy of contracting a Sexually Transmitted Degree. One can easily exchange it for progress up the social status. Sex is guaranteed to buy or sell anything, a new found revelation founded on Western culture. For the youth, its part of a "hip hype" activity, and just like dressing up, there has to be some swagger put to it. A recent survey (read it in last Thursday's Nation at pg14) shockingly revealed that many university students shunned the free government-supplied condoms due to their plain, uninnovative packaging yet they proceeded to have unprotected sex. I don't need to add more, do I?

Education & Health are closely intertwined because they involve giving of public service as the main basis of being a player in this sector. Yet look at the number of sub-standard schools, universities and health facilities springing up in the country. Education is geared towards passing exams and not imparting knowledge and life skills. Doctors nowadays think the important thing is not the Socrates oath, but how many people can pay consultancy fees per day because they want to upgrade to the 2009 Range. Traditional Herbalists are not left behind as they play on our false perceptions about education and make posters of themselves in graduation gowns. Which university offers a course in traditional medicine?

Fanaticism is yet another victim to commercialization. Pastimes such as sport have been completely commandeered and the principles of capitalism transfused into its core pillars. That is why the level of satisfaction would vary when watching a Gor Mahia match then watching Manchester United players at a traning session. Quality. . .

Quality?

Yes, quality. Quality is another grey zone as we realise that somebody somewhere has already pre-determined for us what quality is supposed to be. And quality many a time is coincidentally anything whose market value exceeds the a different item of its type. That is why nobody has qualms about paying top dollar for exotic Indonesian coffee whose flavour is derived from the digestive system of a certain species of civet rats!! Yes, regurgitated coffee beans (Oh, dear, I really hope you took your dinner). And with the tag line of quality also comes exclusivity. Consumerism conceptually represents a bold (economic mostly, and sociological) move to "join the club" as it were. A more layman term would be "kutoa ushamba" in short. We all want to be modern, hip, cool, with it and with acceptable swag despite the economic repercussions.

Thus the broad result of this is a H.U.G.E clamour for upward mobility across the strata of all natural phenomena. Plants and animals want rights that are accorded at least to the basest of human beings. The poor want to be at least middle class. The middle class are tip toeing, looking beyond the walls of the B-list society. The rich want to be super mega rich. The super mega rich well, they want to be demi-gods. The latent energy towards upward mobility can both be a blessing and a curse. There is no way to escape or be immune to this phenomenon since consumerism has deeply entrenched itself to the economics of the entire world. How we deal with it is the catch.
Governments should thus come up with economic policies that tend to positively utilise this Latent Energy of Upward Mobility (LEUM, Copyright 2009, WP) to boost development rather than being an impediment to it. Kenya has failed to do this, for example, in its current (and all other previous) Budget. It has tackled consumerism from the wrong end thus the slashing of tax on cosmetics and mobile handsets will result in more made up people with phones yet they cant afford airtime. Safaricom meanwhile will be sending them spam texts about 'Lipua Milioni' or 'Kwachua Hard body', making them even more anxious.

Indeed, ignoring to cater to LEUM is disastrous in the long run. People divert their desire to what I'd call negative responses to LEUM.Last year, kidnappings in Kenya was only seen in movies. Now, they are almost a weekly affair in Nairobi. I've also been made to understand that the porn industry here is budding what with the reduced tax on filming equipment. More and more jobless smart alecks come up with massive currency forgery extortion and pyramid schemes to "get there". White collar crime is also plummeting.
As I have always said, these are signs of an economy keen to be rejuvenated or else the aggregate feeling would rise from desperation to bitterness, paving way for Ultra negative responses to LEUM manifested by serial killings, terrorism and general anarchy among society's elements.

What should be done is not to fight consumerism but use it to spur growth by creating opportunities for those down to legitimately move up while curbing unfair practice among the upper classes so that they can do something more productive than Madoff -like waiting for Jesus to return or something lol!

"Why do you spend your money for that which is not bread, and your labour for that which does not satisfy? Listen and I'll tell you where to get good food that fattens up the soul." - Isaiah 55:3