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|Kenya: One Year On|
One year after the formation of a coalition government in Kenya to address post-electoral violence, a critical report by Judge Phillip Waki has caused a ‘ticking time bomb' for Kenyan politicians and opened up new possibilities for Kenyan civil society.
In the article below, Gerard Prunier explains that the publication of the Waki report in October 2008 has resulted in a collective ‘state of fury' in Kenyan society. While the Report concluded that politicians from both parties organised and perpetrated systemic violence against their own population, government officials continue to pick up enormous perks and salaries, and fail to address Kenya's crippling problems of inequality and poverty.
The more immediate post-electoral crisis also remains far from over, says Tom Kagwe. He notes that thousands of internally displaced people remain in large camps within Kenya or in neighbouring countries. At the same time, the author finds crucial limitations in both the coalition government and many of the truth, justice and reconciliation tools proposed to heal a fractured Kenyan society.
However, while Kenyan political life appears to be typified by the same failings that contributed to the post-election violence, both the Waki Report and the new coalition government offer a significant opening for Kenyan civil society. Shailja Patel claims that a newly politicised Kenyan civil society is using the Report's findings to hold politicians to account for historical injustice to create "hope from scandal".
6th February 09 - Gerard Prunier, Open Democracy
President Mwai Kibaki of Kenya faced a moment of public embarrassment on 12 December 2009 when he was unable to complete his independence-day speech because of heckling from the crowd. But this was far from an opposition-organised ruckus. Some weeks earlier, his political competitor (and the prime minister) Raila Odinga could hardly speak to a gathering of his supporters who countered his slogan of chungwa! ("orange", denoting his party) with shouts of unga! (maize-flour, i.e. "we are hungry."
Kenya, right now - thirteen months after the post-election bloodletting of January 2008 - is in a state of quiet fury. Unlike a year ago, it is not being expressed with machetes and guns. The tribal and partisan aspects of the anger have shrunk; for the first time it is national in character. It comes from the very depths of civil society, and it is using all the resources of the law.
The title of a letter to the editor in the Nation (published on 16 November 2008) captured it perfectly: "We must take our country back from the politicians". All politicians.
What has happened in Kenya?
A Legal Timebomb
The violence which followed the 27 December 2007 election saw (according to official) figures 1,133 people killed, over 300,000 displaced, and tens of thousands of houses burned down (the true figure of the dead was probably closer to 1,500). By 28 February 2008, amid continuing disagreement over who had won the elections, President Kibaki's Party of National Unity (PNU) agreed to a power-sharing deal with its main rival, Raila Odinga's Orange Democratic Movement (ODM).
The deal was sponsored by Kofi Annan, the former United Nations secretary-general who was now acting as an envoy of the African Union. It included the creation of a new position of prime minister, to be filled by Odinga. This made it look like a return to the bad old days of ruling-elite political fixes which ended with a bloated pork-barrel cabinet designed to have as many mouths as possible at the trough.
But there was a small afterthought, if one largely overlooked at the time: the creation (at Kofi Annan's insistence) of a commission of inquiry on the "events" , to be chaired by Judge Philip Waki. Since Kenya is notorious for commissions of inquiry that lead nowhere, this should have been the first step towards the usual cover-up. But not this time. Judge Waki - having worked with a former police commissioner in New Zealand, Gavin McFadyen; a human-rights expert from the DR Congo, Pascal Kambale; and the Kenyan lawyers David Majanja and George Keboro - delivered his 529-page report to President Kibaki on 15 October 2008.
It caused a major surprise. Both the ODM and the PNU had expected that the "other" side would be blamed for the post-electoral violence - and the two parties were right. For the Waki report - to the great surprise (and satisfaction) of the majority of Kenyans - did indeed condemn them both.
Among the trenchant conclusions of the Commission of Inquiry into Post-election Violence were these:
Most of the killing was not spontaneous, but the result of systematic violence by politically-organised tribal militias: Kalenjin killing Kikuyu settlers (PNU voters) in the Rift valley, and Kikuyu carrying out revenge killings in the Nairobi slums (the latter mostly targeting Luos - Odinga is Luo and the ODM was seen as a Luo political machine)
The National Security Intelligence Service (NSIS) had given advance warnings of likely trouble, which the government had disregarded
The police responded to violence through disproportionate means and also perpetrated killings along tribal lines
The organisers of this mayhem were politicians from both sides; their names were not made public but were given by Judge Waki both to President Kibaki and to Kofi Annan
This was what most sensible people had known all along. But now it was out in the open, in the form of a legally-binding document of relentless urgency (see Xan Rice, "Philip Waki's ticking bombshell", Inside Story, 25 November 2008). Under the commission's terms of reference, the Kenyan authorities either had to set up a special court within sixty days to try the offenders or else see Kofi Annan give the names and the report to the International Criminal Court (ICC) in The Hague, which would then start proceedings against the accused parties for crimes against humanity (see Wanyama Masinde, "Kenya's trauma, and how to end it", 9 January 2008).
The explosion was all the louder because the Waki report appeared a few days after the publication of another report by Judge Johann Kriegler which had charged the Electoral Commission of Kenya (ECK) with:
Omitting 30% of eligible voters, but keeping on the electoral list 1.2 million dead people
Failing to prevent vote-buying, ballot box-stuffing and voter intimidation
Making massive mistakes in vote-counting, at the expense of both sides
Not being able to say who in the end had won the election.
The chairman of the Law Society of Kenya (LSK), Okong'o Omogeni, wrote on 16 November: "Our true character as a nation will be seen in how we handle the Waki Report".
The first reactions were - to the surprise of many in Kenya - remarkably mature. The PNU and the ODM alike shrieked that the report was "superficial" and "bogus" , but the political divide was not partisan; many politicians in these parties supported or criticised the report regardless of party affiliation. The PNU justice minister Martha Karua praised the report which many in her party condemned, while the ODM agriculture minister William Ruto rejected the document his leader Raila Odinga supported.
A kind of healthy panic set in, blurring both party lines and tribal affiliations. Odinga declared: "Rift Valley leaders should desist from receding into their ethnic cocoons on matters of national concerns...The time has come for Kenyans to face negative ethnicity". He was alluding to the fact that Ruto, a Kipsigi / Kalenjin had supported violations of legality in favouring Kalenjin settlement in the Mua forest, thereby creating an ecological disaster. Ruto's probable involvement in the creation of militias at the time of the election was very likely linked to securing the ethnic environment in the area for his fellow Kipsigi (see "Kenya: roots of crisis, 7 January 2008).
Ruto was Odinga's main ally in ODM, and for the leader to berate him was a dangerous gamble for the opposition leader. But Odinga had (probably correctly) gauged the feeling of public exasperation with the politicians, particularly MPs - many of whom (of both parties) rejected the Waki report. In the ODM, for example, the parliamentary group refused to accept the report and the national executive committee of the party had to override them. This at a time when the overpaid MPs ($11,000 per month, plus a variety of perks) were ferociously fighting to refuse the taxation of their incomes.
The public retched. A letter to the editor in the Nation said: "I am wondering how the people who killed our children, wives, husbands, brothers and sisters have the audacity to continue ruling us - and even refuse to pay tax." A huge political gap had opened between the professional political class, particularly parliamentarians, and civil society.
A Hope from Scandal
In the wake of this feeling of revulsion at the men who had tried to protect their cushy jobs by cold-bloodedly inciting ethnic militias to murderous violence, came a slew of scandals - ranging from simply irritating to potentially catastrophic:
The many commissions of inquiry set up by the Mwai Kibaki administration over the last five years were revealed to have been mostly useless - and the more expensive, the less efficient. The Goldenberg commission of inquiry into the huge financial scam of the 1990s had cost $7.1m to produce no result; while the Waki commission, with its enormous potential for reform, had cost a mere $70,000
The security situation at the border with Somalia in Mandera kept deteriorating and the army seemed unable to contain it, despite increased military expenditure
There were revelations about the random-killings committed by the army in reducing the Sabaot Land Defence Force (SLDF, an ethnic guerrilla group which had joined in the post-electoral mayhem for reasons of its own) during 2007-08. The LSK declared : "A law should be urgently established to guide military involvement in civil-society conflicts"
In January 2009, George Okungu - the managing director of the Kenya Pipeline Company (KPC) - was sacked after 126.4 million liters of fuel (worth $98.7m at current market prices) had "disappeared" from KPC storage, siphoned off by the Triton Corporation petrol-distribution company. The Triton managing director fled to India in December 2008 after borrowing a total of $1.36 bn from the Kenya Commercial Bank
The acting roads minister, Chris Obure, went public about his ministry's need for $1bn to build 64,000 km of roads; the ministry budgets had evaporated while all construction opportunities had been missed. "As a nation we spent a lot of resources in resolving the southern Sudan conflict, but now we can't even benefit from peace because we lack direct road access". With the present economic crunch, this had become a matter of national urgency, he said
The food situation in Kenya has deteriorated, largely because most of the displaced persons who were forced to flee in January 2008 had been peasants working in the highly productive areas of the Rift valley and Nyanza provinces. A year after the violence, 150,000 were still displaced and agricultural production had declined by 4.7% - enough to upset the country's precarious food balance, especially for the poor.
Overall food prices increased by 35% during 2008; that of the staple diet, ugali (maize-flour), rose by 150%. Even worse was the chain of corruption when the government distributed 400,000 bags of maize bought with tax money to four millers; they in turn charged $1m to the National Produce and Cereal Board (NCPB) to grind it, while keeping the byproduct of milling and selling it as animal feed for their own benefit; distributors who bought the flour in 2 kg bags for Shs 1,750 ($25) resold it for Shs 2,650 ($38) a bag.
To top it all, the government asked the international community for $438m in emergency food-aid on 12 January 2009 - while declaring that at least 10 million Kenyans were at risk.
The press seethed with indignation as it reported these developments. The outrage over the maize scandal was reflected in the decision on 26 January to dissolve the NCPB. But the government has also responded by pushing through parliament a new press law which bypassed the independent media council and created a new "communications commission"; this was staffed with persons handpicked by the ministry of information, who were granted the right to control the contents of articles and to close radio and TV stations "in the case of an emergency".
Kenyan MPs, already furious at the press for denouncing their refusal to pay tax, were only too happy to give the repressive press law bipartisan approval. The Nobel laureate Wangari Maathai denounced the new law as a violation of freedom of speech, while journalists who demonstrated against it were beaten up. It is in this loaded atmosphere that the government announced the establishment of the special tribunal for Kenya to deal with the Waki report.
A New Battle-Line
The draft law for the new tribunal (which has yet to be finalised), prepared by a justice ministry now in the hands of Martha Karua, is drastic:
There are to be two chambers - a trial chamber presided over by a Kenyan chairman and with two foreign judges (from a list suggested by Kofi Annan); and a similarly composed appeal chamber
The public prosecutor will be a foreign judge, with a Kenyan deputy
There is to be a right of compensation for the victims of the violence
To avoid legal wrangling, the tribunal is to be supreme, i.e. legally placed above any other Kenyan jurisdiction .
Even more important, the tribunal's mandate is to be extended to examine all cases of politically-related civil violence since 1992. This clearly indicates that the phenomenon of "spontaneous" ethnic violence is being considered in its entirety over the last four elections, thus setting a clear challenge to the culture of political manipulation and impunity which had dominated Kenya over the years (see "Kenya: histories of hidden war", 29 February 2008)
It is significant that feeble attempts to criticise the recourse to foreign judges in the name of "national sovereignty" fell completely flat. There has, similarly, been no attempt to denounce the possible ICC recourse as a "foreign intrusion". The tribunal has to be operational by 1 March 2009 - or Kofi Annan will transmit the whole file to the International Criminal Court.
The government, looking for allies in response, decided to recall parliament from its recess - though it has so far failed to pass the legislation required to establish the tribunal. The European Union's Kenya representative announced that the disbursement of $500m of European aid would be contingent upon a serious implementation of the Waki report's conclusions. The Truth, Justice and Reconciliation Commission (TJRC) - set up in October 2008, and invested with great hopes as well as subject to withering critique - has been given an even broader mandate than the tribunal; it has the right to analyse and discuss all events of violence and human-rights abuses between October 1963 (the moment of independence) and February 2008 (see John Lonsdale, "Ethnicity, tribe, and state in Kenya", 17 January 2008).
At the same time, pressure has started to build to avoid the possibility of a cover-up. Civil-society organisations have organised a large meeting under the banner of "The Kenya We Want", to be held on 2-4 February 2009; they invited an impressive slate of world-renowned international speakers on human rights and civil liberties (see Angelique Haugerud, "Kenya: spaces of hope", 23 January 2008).
An End to Violence
Kenya is now ready to bare its soul. What will the results be? Many doomsayers predict a repeat of the abuses of January 2008, while civil-society advocates insist that to bury the signs of corruption and violent political manipulation would likely trigger another very dangerous social crisis. There are serious fears that the coalition cabinet formed on 13 April 2008 (which implemented the power-sharing deal of 28 February) might not survive the process - and nobody knows what kind of new political dispensation would emerge in that event.
The civil-liberties climate has received a powerful boost since the election as United States president of Barack Obama, for whom the Kenyans feel a special affinity - all the more so since the government clumsily tried to prevent the Obama family from talking to the media. On 11 December 2009, the under-secretary in the ministry of heritage, Osman Said, tried to justify the communication ban by saying: "We are doing this because we want to ensure a better flow of information". This is exactly the kind of cant which the Kenyan public is sickened by.
Kenyans now stand at a crossroads. It is to be regretted that their remarkable exercise in self-examination and legal redress has received only a tiny fraction of the attention the January 2008 violence received. In its own way Kenya too is trying to say: "yes, we can!"
Gérard Prunier is research professor at the University of Paris.
5th February 09 - Tom Kagwe, Pambazuka
Fellow Kenyans, it is one year since the National Accord was signed by four gentlemen: President Kibaki, Prime Minister Raila, President Kikwete and His Excellency, Kofi Annan. With the signing of that accord, the Tenth Parliament enacted the National Accord and Reconciliation Act (2008) and simultaneously amended the constitution of Kenya to put the act into force. One year later, every Kenyan has the right to take stock of: 1) What worked and what did not; 2) When some things worked and when some did not; 3) Why some things worked, and why others did not; 4) How some things worked as they did, and how others did not; and 5) Finally, who is responsible for any success and/or failures.
With these five factors we interrogate the Grand Coalition one year later with the object of holding it to account so that it may strengthen what worked and improve on what failed. These five factors are interrogated within four key indicators: 1) The survival of the coalition; 2) Commissions of inquiry; 3) Internally displaced persons; and 4) The Tenth Parliament.
Survival of the Coalition
The Grand Coalition is the first coalition government in Kenya’s history, at least in terms of what coalitions are: governments that are formed after elections, when no party can win a majority to form a government on its own. Most coalitions in the world, especially those in Italy, Japan or Israel, last about a year. The Kenyan one has clocked over one year, but of course not without factional fights through and through. But the government’s principals have weathered storms and tornados from their political lieutenants, storms and tornados which could have split the coalition. The two men have made it work, since as we say in Kenyan politics, the party is the person leading it: Kibaki and Raila remain the principals, and thus, they hold and wield power, even if some of the party noisemakers assume they don’t.
Nonetheless, there are other instances where the two principals were asleep on the job, such as when the Party of National Unity (PNU) was splintering, and now some members elected on a PNU ticket have already registered their own parties. Another example is of Raila when he was allowing some party riff raffs to dismiss the Waki Report. However, the two principals have demonstrated ‘statesmanship’ more often than not, where Kibaki has allowed Raila to really ‘head government’ in a de facto way, but also when Raila gave up on the protocol catfights with Kalonzo, by showing that it does not matter who is second, as well as when he stood firm against Mau forest encroachment.
Unfortunately, there is a need to point out that this coalition has the highest number of ministers and assistants in Kenya’s history. Efforts by civil society to have ‘not more than 24 ministers’ hit rock-bottom, when the two principals chose political expediency over a lean and efficient cabinet. It is quite disheartening that in a country reeling with hunger, abject poverty, high food and fuel prices, the two principals have allowed such a humungous cabinet, which continues to draw huge perks and allowances while the majority of its people live in deplorable situations. To make matters worse, the fiascos surrounding corruption in the maize and maize-flour dealings have continued to haunt this government.
Commissions of Enquiry
Four commissions were proposed during the mediation talks, namely the Independent Review Commission (IREC), the Commission of Inquiry into Post-Election Violence (CIPEV), the Truth, Justice and Reconciliation Commission (TJRC) and the National, Ethnic and Race Relations Commission (NERRC). The first two commissions completed their work and submitted reports to both principals and these reports were made public within a few hours. This worked well, unlike before when such reports were only known to cabinet. Although made public, the cabinet seemed splintered on what position to take.
What did not work was the way in which the IREC sidestepped assigning criminal responsibility to anyone at the Electoral Commission of Kenya (ECK) or any other quarters, including within the political parties led by the two principals. At least however, the IREC recommended the dismantling of the ECK. The manner in which this was done is not the subject of discussion in this commentary, but briefly, politicians changed the constitution to solve political problems, just like they have done for 45 years. Furthermore on the IREC, some terms of reference were to investigate the authenticity of the results and also the tallying process. Had they done a forensic audit, which had been recommended by Kenyans for Peace, with Truth and Justice (KPTJ), it would have been possible to know who actually won. But the IREC chose the simple route that it is impossible to know who won the presidential ballot. Come on, in the 21st century, with its forensics?
The CIPEV report was met with mixed reactions across political and ethno-social divides, but giving credit where it is due, Justice Philip Waki and company did their work well, especially the automated implementation timelines and ‘secret list’, which threw politicians into all manner of panic and disarray. Many Kenyans were also supportive of the implementation of the report, with a view to ending impunity. To date, while many still support its implementation, there has been some confusion on which way to go. Some have supported the proposed ‘local tribunal’ while others have openly stated that The Hague is the way to go.
Not to worry. Both are much of the same; the so-called ‘local tribunal’ is subject to much foreign influence in having four foreigners of the total six judges and a foreign chief prosecutor, while the Special Statute is reminiscent of the Rome Statute, but with some pitfalls nonetheless. The only difference is that the ‘local tribunal’ will operate in Nairobi and not The Hague. To avoid any doubt, if politicians mess up the ‘local tribunal’, Chief Prosecutor Luis Moreno-Ocampo should bring all those on the ‘list’ to The Hague immediately. In sum, the CIPEV was no without its legal questions and certain administrative weaknesses, but for the first time a Commission of Inquiry caught politicians by their horns.
Internally Displaced Persons
Over 200,000 internally displaced persons (IDPs) were rendered homeless and jobless in the wake of the post-election crisis. These numbers were only conservative estimates, as the true figures indeed could reach 500,000 IDPs. Those rendered homeless were either chased away from their homes or farms while others who had businesses in various parts of the country were left without employment. In addition to many other weaknesses, the government started a shoddy project called Operation Rudi Nyumbani (go back home), which disrespected the regional and international instruments that Kenya is a signatory to, disregarded profiling who and where IDPs were, and ignored the efforts of other stakeholders.
Eventually, one year later, IDPs are still lying in camps, especially those near to their origins, in so-called ‘transit camps’. Look at the hills and valleys of the Rift Valley, Nyanza and Western provinces in particular and you would be shocked. Some sort of ‘concentration camps’, littered with white or cream torn tents, are still evident from the ground and also from the air. Government may dispute this and buy newspaper adverts to rubbish credible reports by organisations such as the Kenya Human Rights Commission (KHRC), but the truth be told, many IDPs have not gone back home. Where to? While noble efforts of ‘compensating’ with some few coins were done, the government’s failure to admit culpability in the design, implementation, monitoring and evaluation of the project is simply dumbfounding.
While the live broadcasts of proceedings represent a celebrated achievement of the August House, it nonetheless has always been fond of bringing itself into disrepute. It has many roles to play, but in the context of this commentary its chief role of legislating – as provided for in Sections 30 and 46 of the constitution – should bring it under close scrutiny. Looking the bills drafted for and/or passed by the Tenth National Assembly, and later on, assented to by the president, one is left puzzled. The Constitution of Kenya Review Bill, the Constitution of Kenya (Amendment) Act, the Truth, Justice and Reconciliation Act, and the NERRC Bill, among others, speak volumes to the levels of honesty, professionalism and integrity of the 222 MPs who comprise Kenya’s Tenth Parliament.
Their inability to seek the common good leaves one with a single conclusion: something is amiss in that house and it does not matter who occupies it. The majority of the MPs are new, but it seems the problems such as the disease of lacking quorum and betraying the common good through passing terrible legislation which plagued the Ninth Parliament still persist in today’s house, one year after the swearing of the incumbents. That is why P.H. Okondo, in the book A Commentary on the Constitution of Kenya, stated that what we need are the right systems and structures, and not merely the right men or women.
One year after the Grand Coalition was formed it is difficult to find many good things to say. Nonetheless, the bag is mixed. While the principals have stood tall to steer the country towards seeking justice and reform, they have also failed to give leadership at some key points. An office such as that of the government’s spokesperson has not helped in the least, merely lying to the public about the true state of the government; indeed, this spokesperson should have been fired a long time ago. Despite the above scathing attack on the Tenth Assembly, some of its members have had their fair share of success, with some working closely with civil society on the very pertinent issue of reforms. One year later, the IDP problem remains the worst eye sore in this country, while the CIPEV report remains the most celebrated.
Tom Kagwe is a researcher at the Kenya Human Rights Commission (KHRC).
29th January 09 - Shailja Patel, Pambazuka
Three pervasive myths still circulate about the Kenya Crisis.
First, that it is over. In May 2008, the host of NTV’s breakfast show asked me, ‘Shouldn’t we just get over it and move on?’ On 27 December, the one-year anniversary of the stolen election, the presenter of the BBC’s The World Today programme struggled with irritation when I kept harking back to the civil coup. ‘Hasn’t the country moved on?’, he demanded pointedly.
The answers lie in Ndung’u Wainaina’s exposure of the fundamental flaws of the Truth, Justice and Reconciliation Bill, and in Ann Njogu’s stark description of the ongoing purgatory of hundreds of thousands of displaced Kenyan women and girls. We cannot move on because the post-election violence simply ripped the lid off deep historical chasms and inequities that have never been truly laid out for resolution.
The second myth is the idea that ‘It is impossible to know who really won the 2007 election.’ Therefore, revert to myth one – get over it and move on. I am frequently challenged on my use of the term ‘civil coup’. Anyone who accepts the deeply compromised Kriegler Report at face value must read the articles ‘Unfinished business from Kriegler’s IREC' and ‘Truths missed and tasks dodged: Kriegler report is a half-baked job’ to understand how Kenyans have still not received the truth they deserve about the election.
The third myth has practically spawned its own genre: the stories of ‘what saved Kenya’. My favourite among these so far was recounted to me, in all earnestness, by a Ugandan lawyer: ‘It was Museveni who told Raila and Kibaki: Guys, you need to sort this out. Remember how he arrived in Kenya with that briefcase under his arm? The mediation agreement was inside.’
The lessons of how Kenya was pulled back from the brink of anarchy are vital for the rest of the continent. They highlight the unsung importance of skilled civil society professionals doing their jobs and doing them excellently. Of communities standing up for their rights, against poverty and marginalisation. Of pan-African progressive networks. Of building movements and alliances. Building institutions, infrastructure, and coalitions. So that in the moment when somebody needs to speak, the channels exist, and open, for them to be heard.
On 3 January 2008, as bloodshed escalated across Kenya, all three daily newspapers agreed to run the same banner headline: ‘Save our beloved country’. In the year since, Kenyans have moved from that supplicant pose to one of palpable, vocal outrage at the repeated betrayals of the political class. It is an outrage that has taken to the streets and will not be silenced.
Where do we seek visionary possibility in this moment, when it seems that the ruling class will sell the very soil from under our feet? I find it in the heroes of Kenya’s peoples’ movement. In ‘On the frontlines of the struggle’, Patrick Kamotho Githinji sets out, with matter-of-fact simplicity, his extraordinary ability to transcend the horrors of Kenya’s prisons to educate, empower and advocate for his fellow remandees.
Save our beloved country. What does it mean to love a country when we shut our eyes to the brutality enacted daily on the majority of its inhabitants? How can we love our country if we haven't taken in the pain of our own history? If we haven't really looked at, or listened to, the schisms and jagged cracks in our own society? Claiming the truth, feeling everything it evokes in us, is vital political work. To love our country is to demand justice for all Kenyans over sentimental invocations of national unity. To choose truth, evidence-based analysis, and the enormity of the challenges before us over the fallacy of ‘moving on’.
Shailja Patel is an award-winning Kenyan poet, writer, and political activist.
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