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Monday, October 20, 2014

My Mashujaa? Why, Bitches and Kvetches, Of Course!

In her insightful article, Memorialisation and memory of human rights abuses: a Kenyan example, Laragh Larsen notes the importance of memorials in not just commemorating the past but also in sanitising it. She also highlights the importance of alternatives to the official histories propagated by the state: “While official memory of Mau Mau was suppressed through decades of state-endorsed amnesia,” she writes, “published memoirs of former fighters and detainees of the rebellion allowed Mau Mau to stay alive in the public memory.”

As we mark Mashujaa Day, a day which is meant to commemorate the heroes of the past as well as those of the present, it is important that we remember that many of these heroes (and heroines) will not be found in the official rosters put out by government officials. Indeed, many will be offering subversive alternatives to the official truth propagated by government spin doctors and media pundits. Because these narratives will generally seek to debunk the optimistic vision that these are selling, their purveyors are easily branded as inveterate complainers and doyens of negativity.

In fact, complaining has never been particularly appreciated as part of our national democratic discourse. On Mashujaa Day, Machakos Governor, Alfred Mutua had no problems preaching “unity and development free from poverty politics,” to a county with poverty levels of 64 per cent. The very word “complain”carries a negative connotation as does its synonyms, such as moan or grumble. As Eckhart Tolle, author of The Power of Now and A New Earth, says, “to complain is always non-acceptance of what is. It always carries an unconscious negative charge. When you complain you make yourself a victim.”  It is many times associated with empty, supposedly unconstructive criticism, a capricious exercise of the vainglorious power of the put-down. "Complaint gives you power, even when it's only the power of emotional bribery, of creating previously unnoticed levels of social guilt," writes Robert Hughes, author of Culture of Complaint: The Fraying of America.

In a 2001 article for Time, Hughes bemoans “the all-pervasive claim to victimhood,”  and “a juvenile culture of complaint in which Big Daddy is always to blame and the expansion of rights goes on without the other half of citizenship: attachment to duties and obligations. ”

 But the fact is whiners and gripes are critical to the proper functioning of any democracy and any governance and service delivery framework built on the tenets of free consent. They are the ones who alert us to wrong doing and incompetence, who let us know when we are getting a raw deal. An inquiry into the appalling care offered between 2005 and 2008 at the main hospital in Stafford in the UK acknowledged the importance of bellyaching. “In the end, the truth was uncovered in part by attention being paid to the true implications of its mortality rates, but mainly because of the persistent complaints made by a very determined group of patients and those close to them. This group wanted to know why they and their loved ones had been failed so badly,” says the Francis report, which was released last year. The House of Commons Public Affairs Select Committee in a follow up inquiry found “that valuing complaints and supporting people who feel the need to complain should be at the heart of the values which drive public services,” and even recommending that “there should be a minister for government policy on complaints handling.” As the late American novelist, Zora Neale Hurston said, “If you keep silent about your pain, they'll kill you and say you enjoyed it.”

In Kenya, it was malcontents and inveterate complainers such as Dedan Kimathi, Bildad Kaggia, Jomo Kenyatta, Jaramogi Oginga Odinga, Achieng Oneko, Daniel arap Moi and Pio Gama Pinto, who hastened the onset of independence. They took their gripes right to the heart of the colonial edifice. And when the regimes they formed turned to be little different from those of their British predecessors, it fell to moaners like Jean-Marie Seroney, Martin Shikuku, Raila Odinga, Koigi wa Wamwere, Wangari Maathai, Timothy Njoya, Kivutha Kibwana and John Githongo who kept the fire of resistance alive.

Today, these and many others will or should be honoured for what they did. But even as we raise memorials to them, we must beware that which is sanitised, not just the unsavoury past of many of our heroes, but also the contemporary grouches whom we will not acknowledge. In the last few years, despite the “expanded democratic space” Kenyans love to crow about, it has actually become much less fashionable to bitch about and challenge official narratives of progress and development. It has not been easy for those who have sought to develop and propagate other stories and to keep alive memories that the country would rather forget. 

In fact, there has been a concerted effort to silence alternative voices, to generate an atmosphere of unremitting optimism which is oppressive to any suggestions to the contrary. Questions over the utility of the infrastructure projects the government is undertaking are given short shrift as are concerns over its subversion of the constitution to protect the President from trial at The Hague. During his Mashujaa Day address, President Uhuru himself decried what he called "constant negativity" and "endless, noisy and unproductive politicking," urging the country to concentrate on "development." Those who query his government's commitment to values such as justice, the rule of law and equity are accused of being agents of foreign powers, lacking in patriotism. Sovereignty is conflated with uncritical support for the government and love for country with silence over its many shortcomings.

A recent example can be found in the furore over reports that civil society activists had called for sanctions if the government was found to have breached its obligation to cooperate with the International Criminal Court. Putting to one side the fact the the activists in question say they issued no such call, it is curious that concern over the alleged failure by those in authority to live up to the requirements of a treaty that is part of our own laws is controversial; that demanding action against such a government is somehow unpatriotic. Here one is reminded of the calls for economic sanctions by the then opposition during the struggle against the Moi dictatorship. Further, when the Kenya government, which has itself raised matters before the ICC at international fora, including at the UN, expresses concern when others do the same, it arrogates to itself the sole right to fulminate and affirms the view that the official truth is the only one that should be heard.

Yet we need to hear the issues, stories and memories kept alive by the moaners. By the people at Brainstorm, by the refusal of Prof Wambui Mwangi to forget the suffering of our women and Denis Nzioka that of the LGBTI community, by the likes of Shailja Patel, Prof Keguro Macharia and Abdullahi Boru who will not let us forget about Kasarani and the victims of Operation Usalama Watch, the folks at Maskani and Pawa 254 who are generating new and useful conversations about where we are headed as a country. The much denigrated denizens of civil society who refuse to be silenced. These and many others, too numerous to name, both online and offline, are the one who dare to raise their voice, to say it is not all sunshine and roses, to demand equality and justice.

So here’s to the complainers and the bellyaches, the grouches and the gripes, the bitches and the kvetches, the grouses and the squawks. For their non-acceptance of what is, they are my Mashujaa.

Thursday, October 16, 2014

The ICC's Dilemma In Uhuru, Ruto Cases

Last week, Uhuru Kenyatta made history. On Tuesday, he became the first sitting President to hand over power to his Deputy and two days later, paradoxically was the first sitting President to ever appear before the International Criminal Court. On his return, he was treated to a hero’s welcome with thousands thronging the streets, egged on by his administration. According to one poll, his approval ratings soared to 71 percent, compared to 43 percent just two months ago.
“Politics is theatre. It doesn't matter if you win. You make a statement. You say, ‘I'm here, pay attention to me’” said the gay American politician, Harvey Milk. The unnecessary theatrics of handing over power and resuming office –“a temporary abdication,” Sky News called it- showed just how well the Kenyatta administration understands this. In fact, he and his Deputy, William Ruto, have skilfully managed to turn their indictments for crimes against humanity to their political advantage, easily slipping into the role of victim. In fact they have utilised a trope long made famous by Kenyan politicians. Every time one of them has been threatened with prosecution for economic crimes or political violence, they have mastered the art of using their ethnic communities as a shield. So effectively, they paint themselves, and their communities, as victims and generate political heat to prevent the cases ever being judged on their merits. Failing that, there is always the time-honoured practice of bribing, intimidating and even murdering witnesses.

In the cases before the ICC, we have seen elements of all these strategies. First was the sustained campaign to paint the court as anti-African and to transform the duo into the victims of “the toy of declining imperial powers” as President Kenyatta described the court at the African Union. This is the “our community is being targeted” argument. That African nations form the largest single group of signatories to the Rome Statute, that the Prosecutor is African and that the many of cases, including, arguably, the Kenyan ones, were referred to the ICC by African nations themselves are facts that are not allowed to stand in the way of this performance of collective victimhood. Why Sudan and not Syria, they cried, ignoring that while both are not signatories to the treaty, the latter has cultivated friends at the UN Security Council who have prevented any reference of the situation to the ICC. Omar Bashir, however, is not so lucky in his alliances and indeed it was the Security Council that got the ICC involved in his case. But it is easier to demonize the ICC than to go after the Security Council. And they are not after the Security Council anyway.

Then there was the attempt to turn up the political heat and to get the cases either postponed or dropped altogether.  From the UN to the AU to the Assembly of State Parties, the Kenyan Government pulled all the stops, declaring that these cases were no longer the “personal challenges” of presidential candidates, but the national security issues of the entire country. The prosecutions threatened the fragile peace between the Kikuyu and Kalenjin communities who, though reconciled, were apparently raring to have another go at each other’s throat. It was only the promise of impunity that kept them apart, or so the story went.

When a poorly attended extraordinary AU summit embraced the position that no African head of state should be prosecuted while still in office, the Kenyans wasted no time declaring a massive victory. The fact that it was reportedly just 15 out of the continent’s 54 countries that endorsed the view was irrelevant. The show must go on! However, the UN and the ASP took a rather dim view of that proposition, the former declining to stop proceedings and the latter only agreeing to change the rules to allow the two accused to skip some court sessions and to attend via video link. Of course, the fact that the Kenyan constitution specifically allows for the prosecution of the President did not appear to give the government pause for thought. Worse, it did not lead any of our parliamentarians or journalists to ask why the Uhuru administration was seeking to subvert the clear intention of the basic law that the Presidency not serve as a shield for those charged with international crimes.

Alongside all this, strange things were happening with the witnesses. Some died, others had their identities revealed, still more begun to withdraw, some turned out to be liars, yet others had sudden attacks of conscience and claimed to have been enticed to lie on the stand through promises of relocation to Europe.  Reports begun to emerge of cartels hunting down and threatening or bribing witnesses. As well, the prosecutor was complaining of non-cooperation from the government which was accused of withholding evidence which became increasingly crucial as witnesses dropped out. 

Soon, Madame Fatou Bensouda was admitting that she no longer had enough evidence to sustain a conviction. But the show must go on, she argued, saying that it would be a mistake to reward the government’s intransigence. On their part, many Kenyatta’s supporters took to claiming that in fact there was no evidence at all and that he had been framed.  However, the OTP, at the last status conference summarised the evidence it had, including witnessed and phone records linking Kenyatta to the financing of the Mungiki terror gang to carry out attacks.

So where do we stand today?

As a court of last resort, it was indeed the failure to set up a credible local tribunal to try the elite that forced the ICC to act. But, for such a landmark case, the first attempt to hold a sitting head of state to account, the trials have revealed the weakness at the heart of the international justice system and just how vulnerable it is to both political pressure and governmental manipulation. Ironically, it is to escape these very factors that many put their faith in the ICC in the first place, viewing it as a panacea for weak local courts unable to hold powerful elites to account.

However, the tough realities of trying to prosecute some of the most powerful people on the planet have demonstrated that the court should not be oblivious to the politicising of its procedures and decisions. Arguments made inside the court are just as likely to be aimed at political constituencies as at the judges, and political theatrics are just as likely to affect the court’s ability to effectively try cases. Further, as has been demonstrated in the case of the Sudanese President, the ICC lacks the means to coerce even signatories of the Rome Statute, let alone those standing outside of the treaty, into abiding by its decisions.

This raises difficult questions for the supporters of the court and for those who struggle against official impunity. How to ensure cooperation from the very governments whose leaders it is trying to prosecute? How to protect the court’s credibility without miring it in the muck of local and international politics? Does the Rome Statute need to be amended to give the court real teeth in enforcing its decisions? These and other issues will continue to engage those working to make real the promise of accountability long after the circus has left town.

Sunday, October 05, 2014

The Guilt Of Victims

A version of this article was published in The Star.

Of all the conventions we demand of our courtrooms, few are as important or a well known as the presumption of innocence and the requirement for guilt to be proven beyond all reasonable doubt. For good reason, given the awesome power the state wields and its capacity as well as historical inclination to visit all sorts of horrible consequences on the citizen. However, while necessary in criminal proceedings, they are neither standards of truth nor do we generally employ them in everyday life.

Thus it has been strange, though perhaps not surprising, to hear them being repeatedly cited over the last two weeks in defence of Tony Mochama, who has been accused of sexually assaulting fellow writer Shailja Patel. There have been contradictory accounts of what happened and many have latched on to these as reason why we should wait for a court to decide what the facts were. In the meantime, so the wisdom goes, Tony, who has dismissed the accusations as “utter garbage”, must be deemed innocent both inside and outside the courtroom. 

Now, for what it's worth, I have met Tony and we have interacted infrequently over the last 15 years, even together taking a tour of public universities alongside cartooning greats GADO, MADD, KHAM and the late Frank Odoi. Shailja I have only met online and in her writing which is both a source of inspiration and full of integrity.

However, while one can understand the sympathy expressed for the position that no man should be condemned unheard, it is undoubtedly true that this courtesy is rarely extended to the alleged victims. Understood as zero-sum proposition, the legally prescribed presumption of innocence is turned into a presumption of guilt on their part. Most victims of sexual assault have to endure the invalidation of their experience, the assumption that they are necessarily lying till proven otherwise. Victim and alleged perpetrator switch places with the former required to prove their victimhood, to constantly and publicly relive awful experiences in agonizing detail, to have their motives for reporting the assault questioned, to forsake personal dignity as the cost of seeking societal redress.

"What exactly happened? Where were you touched? What were you wearing? Are you sure you didn't invite it, that you didn't secretly want and enjoy it? Hasn't this happened before? Why didn't you go to the police/ Why didn't you report it earlier?" Many will recall the advise offered last year by prominent psychiatrist and psychologist, Dr Frank Njenga, to a woman who was contemplating reporting a sexual assault that had happened during her teenage years. "The truth that you want to tell must, in some way, improve the quality of your life and those nearest and dearest to you.... Is it perhaps because you have an element of guilt about the abuse? More importantly, do you want to tell the truth so that you can hurt the respected elder in the society? ...What is the cause of your wish to state a truth that may hurt you, your children, husband and parents?

Yet, as one blogger has explained, we do not have to disbelieve victims in order to protect the legal presumption of innocence. Further, it is necessary to recognize that as the paper, Invalidation: A Neglected Dimension of Gender‐based Violence and Inequality, by Michael Salter of the University of Western Sydney, shows, “victims of gender based violence frequently experience invalidation and disbelief from those in the community as well as from medical and legal services.” Such invalidation has terrible consequences for women and girls who form the vast majority of sexual assault victims.

Viewing sexual response only from the logic of the courtroom means, as Sarah Keenan writes, “we would have to buy into the deeply skewed conclusions of criminal justice systems: that only a small minority of men ever commit sexual assault.” The fact is, sexual assault is much more prevalent than our deeply entrenched patriarchal system would have us believe. Our women are rarely safe. Whether it is in the matatu or in the office or even at home, they are never far away from the unwanted word or touch or grope or worse. Physical, mental and emotional abuse stalks their every step and mostly perpetrated by those most close to them, the very men who should represent safety.

This is a reality our society is loath to acknowledge and abused women are forced to run a gauntlet of humiliation and silencing when they seek protection and justice.  They are often not believed, or even when they do, have their pain dismissed and trivialised. This is not too different from the experience of other victims of the abuse of power.  Think how, for example, the victims of politically instigated violence, of the many massacres perpetrated by our government, the impoverished and marginalised, are made to disappear, to endure their suffering in silence.

Not even our justice system provides a refuge for those whom we have disempowered, including our women. Despite the existence of thousands of survivors and witnesses of the 2008 post-election violence crimes, we are told that there exists no evidence to prosecute any of the offenders. The rules and norms privilege the powerful. Even when we dare prosecute they can afford to tie up their cases in legalistic tape for years on end. They can even secure judgements to stop themselves being investigated! Many times, the presumptions and requirements of the courtroom serve not to protect the innocent but to shield the powerful. Many of the victims, denied justice inside the courtroom, find that outside it, their suffering is itself rendered illegitimate. They are said to have “moved on” or even to have “come out way ahead.”

The gendered logic of power that is an inherent part of our system also serves to protect the accused while enforcing silences and delegitimizing the suffering of women. So Tony’s presumption of innocence becomes Shailja’s burden, the proof that the assault never happened or that she is blowing things out of all proportion. We have seen her, and those who support her, described in the most unflattering light not least by Tony himself.

That one who has changed his story at least once and who was reportedly intoxicated at the time of the incident should be suggesting that his alleged victim, an internationally acclaimed poet, playwright, theatre artist, and political activist “has carved out a carrier (sic) of constantly bringing me down” is an example of how easily the testimony of women, even that of women of distinction, can be invalidated. His unfortunate dismissal of Prof. Wambui Mwangi, who has been one of Shailja’s most outspoken supporters and in whose home the incident took place, as “rather stubborn and opinionated” is another pointer to what Michael Salter describes as “cultural mythologies about femininity that persistently undermine female testimony and draw value attributions away from girls and women”. (The same delegitimizing mythologies of sexuality have seen Shailja and her supporters who have been collectively branded “homosexual activists” as if that, in and of itself, impugns their testimony.)

The same sort of easy delegitimizing was at work in the 2011 case of former IMF head Dominique Strauss-Kahn who was accused of rape by a hotel maid, Nafissatou Diallo. DSK admitted that a sexual encounter had happened but denied any wrongdoing and ultimately the charges were dropped due to doubts about Diallo’s credibility and inconclusive evidence. Of interest here, however, was the eagerness and haste of the media and public to believe that a poor, black woman who had lied on her visa application could not really be the victim.

I believe Tony should have a chance to give his side of the story. But any presumption of innocence must not come at the expense of silencing his accuser or trivialising her suffering. We must listen to, and hear Shailja. We must not seek to humiliate her further. We must not invalidate her feelings or be deliberately obtuse in demanding details of the incident. We must recognize that it takes great courage and great personal risk for any woman to accuse any man of sexual assault in the skewed system we have. We must not add to that burden.