Thursday, October 02, 2014

Can We Share The Kenyan Space?

In the 1970s, Dutch traffic engineer, Hans Monderman, came up with the concept of “shared space” after being asked to reduce the speed of traffic in a village in north Holland. He eliminated all forms of regulation on the street and to his nervous surprise, found that average speeds fell by half. According to this 2006 article by Emma Clarke, John Adams, professor of geography at University College London, whose research laid the foundation for Monderman’s work, argues that when protected from hazards, human beings readjust their risk threshold. ‘You fit a car with better brakes, people don’t drive the same way as before and enjoy an extra of safety, they drive faster and start braking later.”

This behaviour is based on an assessment of the risks they incurred during their commute, which risks are often ameliorated by the traffic rules and norms. The solution, then, was to remove these rules that work by mainly separating drivers from oncoming traffic and from pedestrians, and by doing so, increase drivers awareness of risk to themselves and to other road users. “Once the tools are taken away and you put some uncertainty into the street in terms of who has right of way, drivers and pedestrians naturally become more attentive and engaged... You redistribute the burden of risk, giving pedestrians more control,” says Adams.

One can learn a lot about the problems of Kenya by observing the behaviour on our roads.

Like the government that built them, they are hideously expensive but rarely in good shape. Everyone is in a hurry to get on them only to idle away many hours in the seemingly endless traffic jams. As everyone hurries up and waits, enterprising individuals freed from the constraints of law and conscience are getting ahead. These days it seems that everyone who is anyone - from diplomats to County Governors to Cabinet Secretaries- enjoys life on the fast lane courtesy of the Kenya Police, sirens, flashing trafficators or just plain old bad manners.

The rest of us middle-class nobodies can wait after all. It’s not like we are on the way to do anything important. So what if we have to spend three hours to get to the office or home just because the President is in a hurry to get somewhere? Members of County Assemblies have also argued that they should also be exempt from traffic rules because they have weighty matters to attend. This is, of course, unlike the rest of us whose petty concern is trying to earn enough to pay their obscene wages. We have to make way.

The other interesting thing about our roads is those who are actually not on them. There’s a kind of apartheid system where the poor who cannot afford cars or get car loans to buy cars they cannot afford are considered a nuisance. They die in ever larger numbers and are blamed for it. Even the pathways and pedestrian crossings supposedly built for them are not safe courtesy of the previously mentioned, morally challenged drivers. 

The roads tell us a lot about the hierarchies at work in Kenya and the relative values they place of the time and lives as well as the fortunes of the various classes of people. At the very top is the political class and those riding on their coat tails, from government officials to the wannabe county potentates. Everything stops for them. Nothing is allowed to get in the way of their dash to riches. Ours is a system that rewards the unscrupulous and punishes those who follow the rules. To ascertain this, one need only look at the records and bank accounts of the Honourable men and women in our houses of Parliament.

Our middle classes are often too busy trying to stay on the road to nowhere in particular and too busy trying to get ahead to make any noise about the state of affairs. They are grateful for any crumbs they get, any gaps they are allowed in the snarl-up that is life in Kenya even as their prospects of actually making it recede. So, for example, they will cheer the rise of property prices, much of which is driven by the money-laundering of the elite, even as that very rise ensures that their dreams of one day owning their own home will remain just that. Accept and move on, they say. Don’t complain too loudly and if you do, do it on Twitter. There’s no point in resisting the predations of the political and economic roadhogs, those of matatu-esque dispositions.

Of course, at the very bottom of the pile are the poor, whose presence on the Kenyan road is barely tolerated despite their vastly superior numbers. We prefer that they keep out of sight, stick to the places we have prepared for them. It is they, not the road that is the problem. And when the system crushes them, they die unmourned, blamed for their poverty, for making poor electoral choices, for supposedly not working hard enough or being more enterprising. Only by grouping together and expressing their power through sheer force of numbers can they force their way across. And when periodically their anger spills over in riots and “mass action” they can even take over the streets entirely.

Like the police on our roads, our institutions of accountability simply serve to keep everybody in their proper place. They are there to police the citizens, to clear a path for our betters. While they may express umbrage at the toll that the system takes both in blood and in treasure, the fact is they are its enablers and foot soldiers, constantly on the take, either openly fleecing the citizens or in more subtle ways, pocketing massive salaries for doing little work.
The inequalities on the Kenyan roads, as in Kenyan political and economic life, and the rules and norms that have developed to enforce them, need a radical rethink. We need to redistribute the “burden of risk” across our entire political and economic system.  Today, it is the poor who shoulder the largest proportion of it. The current rules and norms conspire to insulate the wealthier classes from the consequences of bad political and economic choices. During the post-election violence of 2008, for example, I remember the police lining up on the road that separates the gated middle-class housing estates where I live from the Kibera slums. Their overriding objective, it seemed, was to insulate us from the violence of the poor, which violence was a direct consequence of the frustrations and deprivations visited upon them by the system we were all so eager to uphold in the name of peace.
Just as they are on our roads, our high and mighty are protected from suffering the consequences of their theft and incompetence. They are, generally speaking, safe from the anger generated by the meltdown of the education system, the soaring inflation, the rising insecurity. Our system allows them to proceed with their lives in happy-go-lucky fashion, oblivious to the misery they continue to inflict. And it tells us that we should be horrified when someone breaks the mold to take a cane to Raila Odinga or throw shoes at President Uhuru Kenyatta. We think it unbecoming. Our rulers should only see our happy faces as we dance for them and pretend everything is hunky-dory.

When the ugly violence that the poor have to navigate on a daily basis suddenly and unexpectedly appears in an upmarket mall, we mourn for the victims. But even then, we continue to be blind to other deaths. Who laments the dead of Mpeketoni or the murdered of Garissa? Where are the monuments to mark the victims of Bungoma? Why are these not as deserving of remembrance as the victims of Westgate? As we return to our malls in supposed defiance of the terrorist assault on our way of life, do we see the suffering of those who cannot afford to indulge in the illusion of safety, for whom poverty, violence and death continue to be the stuff of everyday life? What would we do different if we did?

A village in the Netherlands that had a problem with speeding traffic passing a primary school decided to solve this, not by erecting larger fences, but by extending the playground across the street. Suddenly confronted with the risks of their behaviour, drivers spontaneously reduced speeds. We too similarly need to dismantle the system of privileges and entitlement that keeps us separate from and oblivious to the risks of our political and economic behaviour. We need to re-imagine and recreate Kenya as a “shared space” where everyone, not just the poor, takes their fair share of the risks and everyone, not just the powerful, enjoys their fair share of the benefits.

Friday, September 26, 2014

Despite Its Faults, The ICC Is Still Important

There is a lot that is wrong with the international justice system. It is not only selective in the cases it chooses to pursue, but many times is weighed down by political as opposed to exclusively legal considerations. In recent times, it has not even proven itself as a particularly effective means of meting out justice even to those it has opted to pursue as evidenced by the International Criminal Court’s woeful conviction record.

Yet for all its faults, it is still important. For many in countries where dominant elites murder and plunder with impunity, it still represents a hope for justice. This was the reason why a few years ago, the majority in Kenya favoured trials at the Hague for those most responsible for the violence that followed the December 2007 elections in which more than 1,200 of our countrymen lost their lives and hundreds of thousands more were displaced from their homes.

One of those who pushed for the trials was Ngunjiri Wambugu who in 2011 was part of a coalition of civil society groups who repudiated the Government’s position that Kenya’s sovereignty, as opposed to criminal liability, was at stake in the cases facing six Kenyans at The Hague. As director of Kikuyus for Change, he even reminded Uhuru Kenyatta, who was then Deputy Prime Minister, that “ the Agikuyu have not been charged at the Hague ... He will be going to the Hague to represent himself, in his own capacity.” Pouring cold water on Kenyatta’s “new found friendship with William Ruto”, he wrote that most Kikuyu’s were interested in “getting justice for the victims of the last election-related violence incidences.”

Of course, Ngunjiri Wambugu has since changed his tune. In his weekly column in this paper barely two years later, following the 2013 elections which delivered Uhuru to the Presidency, Mr Wambugu seems to have had an epiphany of sorts. Suddenly, President Uhuru and his deputy were not “two individuals with cases in the [ICC]”. He also discovered that “that the African continent has its own traditional system of resolving the kind of conflict that the first world calls “crimes against humanity” and castigated his erstwhile colleagues in civil society as “crying louder than the bereaved” suggesting that “while we agitate for justice for 2007, the victims might have ‘moved on’”.

I fully respect Mr Wambugu’s right to change his mind on issues. That in itself is not a bad thing. Only a fool never changes his mind, and I do not think he is one. I am, however, interested in why and I suspect that his reasons have more to do with outcomes than they do with processes. After all, didn’t “traditional system of resolving the kind of conflict that the first world calls ‘crimes against humanity’” exist before March 2013? Clearly, justice, at least of the restorative and punitive variety, is yet to be delivered to the victims of the post-election violence. Is it his understanding now that due to President Kenyatta’s “friendship with William Ruto” the victims are no longer interested in this?

The only thing that changed in March 2013 was the outcome of the election. Even as President, Uhuru Kenyatta remains eminently prosecutable and our own constitution makes no bones about this. “The immunity of the President under this Article shall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity” it says in Section 143(4).

In his most recent piece, Mr Wambugu decries the fact that the ICC prosecutor continues to pursue a case that “she does not have enough evidence to sustain” and even suggesting that the demand that the Kenya government cooperate with the ICC is akin to asking it to “self-emollate” (sic). It is curious that he considers requiring the government to follow the law as a form of self-sacrifice. We did not set up the government to pursue the “personal challenges” of its executives but rather the national interests of the entire public. Its duty is to uphold the law, even when –actually, especially when-  that goes contrary to the interests of the dominant political elite. It is the failure to do this, to enforce the law and to punish the President when he breaks it that is the very reason we turned to the Hague in the first place.

From ignoring court orders to arrogating to himself the powers to cancel title deeds and order police to cease enforcing the law against suspects, this President has shown himself to be in utter contempt of the constraints placed upon him by the law. Nothing illustrates this more than the employment of the machinery of the state to fight his “personal challenge” and to subvert the letter and intent of our constitution.  In the face of this assault, our institutions, from Parliament to the courts, have proven themselves impotent in holding him to account.

Mr Wambugu is more concerned about the outcomes than the processes. The fact that Uhuru Kenyatta’s case has collapsed is more important to him than why it did. The allegations of witness intimidation, of cartels hunting them down, threatening and bribing them, of the government failure to protect them, are of no consequence in his eyes.

However they should matter. Because, regardless of whether one thinks Uhuru Kenyatta and William Ruto are guilty or innocent, we should all be invested in a fair and transparent process. We cannot on the one hand be outraged by the seeming deficiencies and even allegations of criminal behaviour on the part of the ICC prosecutor, while ignoring similar allegations of witness tampering by (one can only assume) agents of the defendants and the egregious behaviour of the Kenya government.

Eventually, the ICC judges will determine whether the Madame Fatou Bensouda has evidence or not, whether she has behaved in a manner that upholds the dignity of the court. More than the specific outcomes, however, what should matter to us is the conduct of our own government and of its officials in this matter. If the rule of law is to prove to be a lasting restraint on the appetites of our elites, its threat must be credible.

The ICC process, for better or worse, is a part of our laws and undermining it, as the government has done, is undermining the very basis, the constitution, on which we hope to build the edifice of a nation dedicated to the welfare of all its people, and not just that of its rulers.

Sunday, September 21, 2014

A Year Later, Confusion Still Reigns Over Westgate

A year ago, Kenya experienced one of the worst terrorist atrocities on ever perpetrated on her soil. The gunmen who attacked the Westgate mall on that awful Saturday morning may have killed at least 67 people and wounded many more but the real impact of their actions has been in challenging the country’s commitment to protect its people. As the local and international news media gears up to mark the anniversary, indications are that much of the coverage will highlight the horror as well as the undeniable heroism and courage many displayed during the ordeal. That is all good and proper.  But we must not gloss over the many failures witnessed then and since.

The national unity and camaraderie that was expressed at the start of the attack has long since abated. Actually it didn’t last very long. As Kenyans were lining up in record numbers to donate blood for the victims and to cement their commitment to the idea of Kenya, it was revealed that many of those who went into the mall and supposedly risk their lives to confront the terrorists, were actually there for less altruistic motives. “We Are One” turned to “We Are Wondering” as the photos of looted shops and CCTV footage of soldiers from the Kenya Defense Forces carrying paper bags out of the destroyed mall were etched into the national memory. The confused and contradictory statements made by government spokespeople throughout the four day ordeal continue to reverberate to the present day.

In fact, to date, there has been no definitive official account of what transpired in the mall. The Commission of Inquiry promised by President Uhuru Kenyatta in the days following the attack failed to materialize. A report into the attack tabled by a Joint Parliamentary Committee was rejected by the National Assembly. The KDF was reported to have prepared a report on its actions during the siege but this is yet to be published.

Conflicting press reports have added to the confusion about the details of the incident and mirrored the gaps and contradictions in the narrative provided by government officials. A recent documentary by British film-maker Dan Reed has cast doubt on the timeline of events presented in a special investigative report by KTN which now appears to have relied on heavily embellished accounts of the effectiveness of an elite Kenya police anti-terror unit.

Initially, the government said there were up to 15 gunmen in the mall. The attack was said to have been planned over a long period in the Dadaab refugee camp and that ammunition and machine guns had been secretly stashed in the mall in preparation for the attack. The Cabinet Secretary for Foreign Affairs, Amina Mohammed, claimed that a British woman "who has done this many times before" was among the attackers, as were "two or three" Americans. All this was later contradicted, though recently, a Daily Nation report has once again suggested that there may have been “up to 15 foreigners” involved in the attack. The belt-fed machine gun claimed to be used by the terrorists has never been produced. According to the Daily Nation, “two of the attackers are believed to have flown from Somalia to Entebbe and travelled by road to Nairobi” which contradicts government assertions that they came in via Dadaab. In fact, all four attackers were in November reported to have trained in Somalia and in Nairobi, not in the refugee camp.

On the looting of the mall, the government first denied the reports, then accepted that some looting had happened and said an inquiry into the same, commissioned by the President, was underway. No findings have to date been made public. Parliament did not fare any better, with a committee first rubbished the reports of looting (after supposedly reviewing all available CCTV footage in record time). “KDF soldiers and all the officers who participated in that operation, never, and I want to use the word, never, participated in looting,” declared Asman Kamama, chair of the parliamentary committee on National Security and Administration. Following public howls of outrage, and the airing of CCTV footage showing the extent of the looting and soldiers carrying shopping bags out of the mall, the MPs tried to walk back the claim saying they had not been given access to all the evidence.

On whether the terrorists were killed or escaped, there is still some confusion. The government, now having ascertained that there were only four attackers, despite President Kenyatta earlier declaration that five terrorists been killed, claims all are dead and their remains have been handed over to the FBI for identification. Though the AFP reported last November that Interpol and the FBI were assisting Kenya to identify “four charred bodies recovered from the ruins”, in January Dennis Brady, the FBI’s legal attaché in Nairobi, admitted that only “three sets of remains were found.” This implies that at least one of the attackers is yet to be accounted for.

A January report in the Toronto Star, quoting an intelligence source, claimed that in the midst of the confused response “the attackers are believed to have fled” adding that one of them “is being pursued in southern Somalia.”  The Daily Nation has also speculated on a “theory that most of the attackers had Kenyan IDs and passports and could have simply disappeared into the crowds as the rescue got underway.”

The total number of casualties is also in doubt. A month after the attack, Kenya Red Cross Society secretary general Abbas Gullet said 23 people were still reported as missing. At one point, according to the Society’s annual report, nearly 119 people were reported as missing. The rejected parliamentary committee quoted a “forensic report” that is yet to be made public saying 67 people died and over 200 were injured. However, there was no mention of what happened to the missing persons and whether they were ever found. The fact that a week after the attack relatives of the missing had been asked to report to City Mortuary for DNA profiling following “the discovery of  more bodies from the ruins of the mall,” simply adds to the confusion.

The rub of all this is that as we come up to the first anniversary of the attacks, we are probably no closer to understanding what happened for four days inside that mall. As a consequence, Kenya has not learnt any lessons that might be useful in preventing further attacks. This is evidenced by the many atrocities the country has had to endure since, and the almost predictably shambolic government response.

When terrorists attacked the Jomo Kenyatta International Airport, Kenya police were quick to misidentify it as an exploding light bulb, reminiscent of the burning mattresses that supposedly brought the Westgate mall down. To date, Al Shabaab members seem to have no problems passing through the same airport. Just last week, the Daily Nation reported that three of them had flown out of Kenya only to be arrested in Germany. Perhaps the most outrageous of these were the Mpeketoni attacks in June which further exposed the unpreparedness of our security agencies as well as the readiness of some in the government, including the President, to utilize the tragedies for political gain.

Even worse, the government has failed to act on the information it has. Last October, in a piece published in the Wall Street Journal, President Kenyatta identified the illegal trade in ivory as one of three primary sources of funding for Al Shabaab. Yet even as he called for “a global moratorium on ivory trading,” the fact was his own government stood –and still stands- accused of protecting the kingpins of ivory poaching in Kenya. Further, according to the UN, illegal charcoal exports from the Somali port of Kismayo, which exports are widely acknowledged as an important source of revenue for the terror group, have actually increased despite the KDF taking over the port last year.

The truth is, the government has primarily sought to deal with terrorism as a public relations, not a security problem. The dominant political elite has viewed security challenges not only as an opportunity to loot the national treasury through dubious contracting, but also to intimidate the opposition. It has been reluctant to address the root causes of disaffection and corruption which groups like Al Shabaab have exploited to perpetrate their atrocities.

If Kenya is serious about protecting its population from terrorists, then we must dispense with the meaningless declarations of victory which government spokespeople like to spew in the aftermath of attacks. We must stop the scapegoating of Somalis which today passes for policy. Rather, we should work to deconstruct the narratives that have kept us blind to our vulnerabilities and that have allowed us to pursue red herrings at the expense of attending to the real historic and systemic failures which have left us open to attack.

To do this, we must begin with an honest account of how we got here. As Ndungu Gethenji put it, with reference to Westgate, "people need to know the exact lapses in the security system that possibly allowed this event to take place.”