Thursday, September 11, 2014

Who Today Speaks Of The Kenyans?

When, following the Second World War, the surviving Nazi and Japanese leaders, were arraigned in military courts to face charges of, amongst others, crimes against humanity, Chief Prosecutor Robert Jackson described the trials as “one of the most important tributes that Power has ever paid to Reason”. However, given that only crimes of the Axis Powers could be tried and that it was not a defense to argue that the Allies had done many of the same things the Axis Powers were being accused of, "one of the most important tributes that Power has ever paid to Reason” turned out to be little more than victors' justice.

Last week, nearly seventy years after Nuremberg, we witnessed another example of victors’ justice in a crimes against humanity trial. International Criminal Court prosecutor, Fatou Bensouda, surprised no one with the admission that the case against President Uhuru Kenyatta with regard to the 2007/8 post election violence had practically collapsed. It perhaps was never a strong case to begin with and the ICC’s dismal track record in securing convictions does not inspire much confidence.  However, it would be hard to deny that the death knell for the case was rung on the day Uhuru and his fellow indictee, William Ruto, won the 2013 elections and ascended to the highest office in the land.

The campaign that followed, which sought to intimidate both the court and its witnesses, was unprecedented in its ferocity. And it succeeded. Many of the witnesses had sudden changes of heart or experienced what can only be described as an attack of conscience - previously suppressed memories of being bribed and coached abruptly surfaced. At the same time cartels were said to be hunting witnesses down, the government was expending huge amounts of time as well as diplomatic and fiscal resources trying to stop the trial and ignoring the Constitution. Specifically Article 143(4) which expressly allowed for the prosecution of a sitting president.

As the President looks set to cast aside the “personal challenge” he has succeeded in disguising as a national problem, similar things are happening in his Deputy’s case. Meanwhile, we long ago learnt that the other 4500 pending PEV cases meant to be prosecuted locally had similarly collapsed. The rub of it is that no one will now be held responsible for the deaths of 1200 Kenyans and the maiming and displacement of hundreds of thousands of others.

Such impunity is, of course, nothing new in Kenya. In fact, it was because of our scepticism over the ability of local justice system to deal with our high and mighty that many were ready to say: “Don’t be vague; It’s the Hague.” However, when it came to it, our incestuous elite closed ranks to protect one of their own. Nary a voice was raised, even in the opposition when the state subverted the Constitution, refused to cooperate with the ICC and failed in its duty to protect witnesses. In fact, even before the election, the CORD coalition, under Uhuru’s bitter rival, Raila Odinga, had promised to scuttle the ICC trials if he won. Few politicians on either side are perturbed by the failure to prosecute more than a handful of PEV-related cases.

The collapse of these PEV cases, both locally and at the ICC, is profoundly depressing because it reinforces the disposability of Kenyan lives. The fact is, from the dawn of our history, Kenyans have been regularly slaughtered in large numbers, mostly at the behest of our ruling elites who picked up their bad habits from the colonials. And throughout, impunity has been the order of the day. The Indemnity Act, which formed a crucial part of the constitutional and legislative framework for the application of emergency laws in Northern Kenya , gives blanket immunity to all government personnel for crimes committed against the population of North Eastern Kenya during the Shifta War in which up to 7000 people died. No one has been held responsible for the many subsequent massacres in the same region nor for the government-instigated mass killings and displacements in the 1990s. According to the Kenya Human Rights Commission, “from 1991 to 1996, over 15,000 people died and almost 300,000 were displaced in the Rift Valley, Nyanza and Western Provinces. In the run-up to the 1997 elections, fresh violence erupted on the Coast, killing over 100 people and displacing over 100,000. ”

Rather, the men on whose watch many of these murders and displacements occurred are today feted, both in death and in life. Within the last month we have solemnly marked 36 years of the death of Jomo Kenyatta and celebrated Daniel Arap Moi’s 90th birthday. At these anniversaries, the many victims of their brutal rule remained conveniently hidden and forgotten, their lives and suffering as cheap today as it was when it was inflicted.

The fact that Kenya refuses to demand justice for its people is the most telling sign of how little our lives are esteemed. The fact that we die and are displaced nameless and in nice round numbers is a marker of our individual insignificance. There are no monuments to remind us of the thousands we have sacrificed for our elites save for the hidden camps for the displaced whose existence the government is quite happy to deny. For most of the time they are invisible, their unending suffering rendered meaningless. Even during the ICC trials, they have mostly remained unseen.

The ease with which we have forsaken our brothers and sisters does not bode well for the future, not just of our countrymen, but also of the victims of similar across the continent. The charge of “crimes against humanity” was first articulated in reference to the Armenian Genocide of 1915-18. However, the Turks were never formerly prosecuted under international law. This failure to hold them to account paved the way for the Nazi Holocaust. As Adolf Hitler rhetorically asked his generals: “Who today still speaks of the Armenians?”

Who today will speak of the Kenyans?

Saturday, September 06, 2014

The Past Is A Disease

A version of this article was previously published in The Star.

Last week, President Uhuru Kenyatta witnessed the blowing up of a ship said to be full of illegal drugs. It was his “burning ivory” moment – a harkening back to then President Daniel arap Moi’s 1989 photogenic bonfire of a heap of elephant tusks which became an icon for conservationists around the world. President Kenyatta was supposedly signalling his determination to stamp out the illegal trade. However, his moment was somewhat spoilt by a Mombasa judge who had, a few hours before the fireworks, issued an order stopping the ship’s destruction which the President promptly ignored.
Still, Kenyan media was full of stories highlighting the government’s new found enthusiasm for the war against drugs. As has become the norm, little was said about the legality of its actions or the emptiness of its rhetoric. After all, it has long been rumoured that many of Kenya’s most powerful people are behind the drug trade. In 2010, at least four Members of Parliament, including Hassan Joho and William Kabogo who are both County Governors and Gideon “Sonko” Mbuvi, who is currently a Senator, were being investigated in relation to drug trafficking (they were subsequently cleared).
Further, a damning 2006 US cable released by Wikileaks revealed that “Standard journalists and others” privately believed that the police raid against the Standard Group premises in March that year were prompted by suspicions in State House belief that the paper had documents implicating President Kibaki's family in “grand-scale corruption, possibly including narcotics trafficking.”
A Parliamentary report into the activities of the infamous Artur brothers said it was “abundantly clear that the two brothers were conmen and drug traffickers. That they enjoyed protection by the high and mighty in the Government is not in doubt.”
It is safe to say that President Uhuru’s administration is unlikely to pursue any serious investigations against his immediate predecessor. In this, he is again following on a well trodden path. In the 1970s, the Kenyatta family was widely suspected of involvement in the illegal poaching that decimated Kenya’s wildlife. Still, on taking over power, Moi saw fit not to look too hard into the past. Similarly, despite being implicated in massive corruption scandals, Moi’s family was afforded protection by the Kibaki administration.
As I have described before, the profits from these illicit activities are laundered through the Kenyan economy and particularly through the real estate market. This is driving up the cost of housing and making the dream of owning a home an increasingly distant prospect for most. However, it is not just money that’s being laundered. Reputations are too.
This week we were treated to a sterling example of this. As Moi celebrated his 90th birthday on Tuesday, Kenyan press was replete with a retelling of his time in power that almost completely ignored his brutal and kleptocratic ways. Instead we were presented with a vision of meekness, of a man who rose from humble beginnings to lead his nation, a peaceable lover of education who only wanted what was best for his country.  
To be fair, the fawning was not limited to Kenyans. Former Tanzanian President, Benjamin Mkapa, similarly gushed about “ the visionary manner in which [Moi] introduced and managed the multiparty politics and system of government.” Little was said about the fact that it was Moi who turned Kenya into a de jure one party state, that he only acquiesced to pluralistic politics after Kenyans took to the streets and donors withdrew their funding. Few mentioned the political murders his regime was responsible for, the Nyayo House torture chambers, his single-handed demolition of the economy and the education system, his instigation of so-called “tribal clashes” in 1992 and 1997 in which scores lost their lives.
At least, one would think, we have alternative history in the form of the report of the Truth, Justice and Reconciliation Commission. But even here, we have found it hard to resist the urge to edit history. Both State House and Parliament have tampered with the Commission’s findings in an attempt to, in the words of Majority Leader Aden Duale, “improve” it. The Presidency pushed through changes to the land chapter designed to camouflage Jomo Kenyatta’s land grabs and, it appears, Parliament has arrogated to itself the power to “clear” those who are named in the report.
All this fits in to a disturbing pattern that has emerged over the last decade or so and that perhaps has roots that go back even further to the dawn of independence. It speaks to a determination to ignore the past. As a Swahili saying goes, yaliyopita si ndwele., tugange yajayo -which roughly translates to “the past is no disease, let’s cure the future”. We have been constantly and consistently encouraged to let bygones be bygone, to forgive and forget, to accept and move on. But the truth is that the past is a disease. We can no more ignore it than we can any of the other maladies rampaging through our country.
We are deluding ourselves if we think that airbrushing the uncomfortable moments of our history will provide more than a transient relief. Exploding ships and infernos of ivory may look good on TV or on the front pages of the newspapers, but they are no substitute for real action to tackle poaching and the drug trade and to bring culprits to book. Similarly, hagiographic retelling of our history is no substitute for truth and justice.
Photo-ops and makeovers will only take us so far. Eventually we will have to confront reality, whether we are dealing with illicit activity or with the effects of our history. And the longer we put off that confrontation, the harder and more traumatic it will be.

Thursday, August 28, 2014

A Constitution For All

A version of this article was previously published in the Star.

This week marks the fourth anniversary of the promulgation of the Kenyan constitution.  The significance of a country’s constitutional history cannot be overstated, for it is as a reminder of where the nation has come from and the lessons it has learnt. On this anniversary, Kenyans could do worse than take some time to reflect on the process of constitution-making and on the document that process has produced.

Much of the last quarter century of our collective history was spent trying to undo the original sin committed at independence. In that time, we have been trying to reverse the dismantling of the majimbo constitution, concentration of power in the person of the president as well as the dilution of the bill of rights. The terms we use may be different but the arguments are still largely the same ones our parents and grandparents had. The concerns over marginalisation and exclusion remain.

In a paper titled Amending the Constitution -Learning from History that he presented at an International Commission of Jurists conference in 1992, our current Attorney-General , Dr Githu Muigai, noted what had happened in the first decade following independence: "The colonial order had been one monolithic edifice of power that did not rely on any set of rules for legitimization. When the Independence constitution was put into place it was completely at variance with the authoritarian administrative structures that were still kept in place by the entire corpus of public law. Part of the initial amendments therefore involved an attempt - albeit misguided - to harmonise the operations of a democratic constitution with an undemocratic and authoritarian administrative structure. Unhappily instead of the latter being amended to fit the former, the former was altered to fit the latter with the result that the constitution was effectively downgraded."

Effectively, as the Truth Justice and Reconciliation Commission noted in its report, the colonial state endured. Thus Jaramogi Oginga Odinga could declare “Not Yet Uhuru” and inspire the two-decade long struggle for the “Second Liberation” that started in 1990 and gave birth to the current constitution. And while it was very much a struggle to tame the “authoritarian administrative structure,” it also became conflated with notions of good governance, accountability and transparency, which made Kenya part of a global trend following the fall of the Berlin wall.

But lately, these realities seem to have taken a back seat to the struggle among politicians for governance arrangements that would suit them. There appears to be a dangerous sentiment that the underlying causes were either resolved by the promulgation of the constitution or that they can be safely swept under the carpet of “accept and move on.” In an article published over the weekend Dr Nzamba Kitonga, the former Chairman of the Committee of Experts that drafted the 2010 constitution, essentially admits that the process was hijacked by the political elite and details how, following the mind games played at Naivasha, the committee was “advised not to tamper with the pure presidential system agreement and several other new clauses.”

So much for a “people driven constitution”. But Dr Kitonga goes ahead to legitimate this usurpation, privileging the arrangements for electoral losers and reducing the role of “Wanjiku” in government to cheering on the sidelines. “In the rural areas wananchi are also grumbling,” he asserts.  “They say they no longer “feel” the government. They long for the days when an MP/minister would visit the grassroots to be “with them” and explain government policies at their level and in their grassroots language — including dancing, singing, cheering and generally inspiring the crowd.”

And so it is today that our current constitutional debates seem to be more about accommodating politicians and their greed and relegating the role of the people to performing traditional gigs for the elites entertainment. Governance has taken a back seat.

There has been little outrage so far this week when Nairobi County Deputy Governor revealed that when the defunct Nairobi Metropolitan Ministry spent nearly Kshs 437 million installinga camera and traffic lights system meant to tackle the capital’s notorious traffic jams, it neglected to include the synchronisation software that would actually make the system work. The fact that the Pakistani city of Peshawar was reportedly going to spend the equivalent of less than Kshs 20 million installing 260 cameras and three control rooms to monitor them while we spent more than twenty times that amount installing 51 (or that we eventually only installed 42 for the same cost) does not seem to bother most people.

The fact is, as the above example demonstrates, despite the change in constitutions the rapacious colonial state endures. Sadly, we have divorced our governance arrangements from the role they are meant to play in preventing such irregularities. Once again the constitution is in danger of being downgraded to fit our corrupt circumstance instead of being the mould into which our governance fits.  So today, we would much rather go to the streets to protest theft of political power (which is really only the opportunity to “eat”) than to protest the impoverishment and marginalisation that this has brought. I fear we are slipping back into the mould where we would much rather starve with one of our own in power, than set up systems that ensure all have square meals. We are still content with the symbols of democracy and “development” while forsaking the substance. All this reveals, as one of my friends put it, “how hollow the transformation wrought by the new constitution.”

It has been said time and again that constitutions live, not on paper, but in the hearts of the people. If they are to be any good, they have got to work in the interests of the many, not of the few. Our political elites have for too long enjoyed too many seats at the constitutional table and their voices and ambitions have for too long been allowed to crowd out the call from the masses for accountable governance that responds to their needs, that defends them from the indignities of deprivation and poverty, protects them from wanton violence, treats them as human beings everywhere deserve to be treated, ensures they have the opportunity to actualize their dreams and that offers a better future for their children.


As we mark the fourth anniversary of the promulgation of our constitution, and as we debate the possibilities and opportunities of amending it, it is my desperate –some might say desperately unrealistic– hope that it is the welfare of wananchi, not that of the current crop of wenyenchi, that will be the uppermost consideration animating our conversations.