Why Kenyans Are Deathly Afraid Of Presidential Elections

Another election. Another failure of systems. Another dispute, another anxiety laden wait. Another bout of violence. The routine has become depressingly familiar. Over the past week, Kenya has been at a standstill, holding her breath as votes were counted, announcements made and politicians bickered over the results, praying these would not summon the spectre of 2008.

Kenyan presidential elections have always been contentious - a legacy of our history dictatorship. Within a decade of independence from Britain in 1963, the country had been transformed into a de facto one party and as long as the centre was not challenged, other aspects of a competitive, democratic system were allowed to function.

This meant that for the first 30 years, while parliamentary races were fiercely competitive -with more than half of incumbent Members of Parliament regularly thrown out- at the presidential level, they remained a placid affair. Jomo Kenyatta and his successor, Daniel arap Moi, as heads of the party were “re-elected” unopposed at every turn.

A year to the 1992 elections, however, everything changed. Following a sustained two-year campaign of protests and international pressure, Moi was forced to reverse a decade-old change to the constitution which had formally banned political parties other than his own. This led to the first ever competitive race for President, which set the tone for all presidential contests to come -it was marred by large-scale, ethnic-based, violence, irregularity and outright theft.

The 1992 polls were preceded by government-instigated “tribal clashes”, in which 5,000 people were killed and another 75,000 displaced in the expansive Rift Valley. Just months before the 1997 elections, politically instigated violence killed over 100 people and displaced an estimated 100,000. While both 2002 and 2013 election campaigns were marked by several incidents of violence, with no incumbents running, the violence was somewhat limited.

At first glance, the violence of 2007/8 seems to sit pretty well within this picture. But, on closer inspection, there are fundamental differences. All previous large scale electoral violence was instigated controlled and perpetrated either by the government or with its acquiescence. The 2008 violence was the first time Kenyans confronted the prospect of a Hobbesian “war of all against all”, with the opposition also able to mount significant violence.

Kenya’s electoral violence had previously been controlled and limited in geography and scope. Though the 2007/8 was not the worst the country had suffered, it provided a glimpse of a possible and very scary future, where the threat of violence did not stem primarily from the state, but from one’s neighbours and friends.

Kenya has always been a violent country, one silently at war with itself. The colonial state is at the center of that conflict. The various communities and fractions of communities that make up the nation are constantly fighting to control the state which ironically was created to facilitate others preying on them. At independence, rather than reform it, the clique that inherited it, which includes both Uhuru’s and Raila’s fathers used it to enrich themselves and their friends and relatives at the expense of the rest of society.

Throughout it all, as Matt Carotenuto writes, the state has learned to weaponize the language of “peace” to avoid scrutiny of its actions and a discussion of the past. “From the days of Jomo Kenyatta’s regime to the Presidency of his son Uhuru, Kenya’s five decades of independence have been marked by wide ranging uses of “peace” to silence more messy notions of reconciliation and political change.”

As Kenyans settle down to the daily grind, there is a danger that they will once again be urged to as Kenyatta put it in 2002 “forget the past, however bitter we may be, and forge a common front to be able to overcome our emotions”. But that would be a mistake because, if there are any lessons to be learnt from Kenya’s history, it is that a true “common front” will not be forged through “forgetting he past” but by facing and dealing with it.

Kenya is thus has a choice. The country can either try to recreate the brutality that its colonial state wielded previously and attempt to force the genie back into the bottle, or it could actually attempt to confront and deal with its traumatic past and to begin to create a state that works for all.  Kenyatta appears to have settled for the former, judging by the viciousness with which post-election riots have been put down – at least 24 people have been shot dead and many more, including a six-month old baby, badly beaten.

What prevails in Kenya now, what has always prevailed, is not peace but rather, an uneasy calm -a ceasefire of sorts. But it won’t last, nor be translated into a deeper peace unless the country has the courage to fix its frayed national fabric.

Quitting On Integrity

It came as no big surprise. “I will not resign”, declared the new chair of the Ethics and Anti-Corruption Commission, Philip Kinisu, regurgitating what has become a stock phrase in the vocabulary of all Kenyan public officials. Barely six months after he was appointed to head the country’s premier public ethics agency, Kinisu has been accused of ethical violations of his own, after his family-owned firm was found to be transacting business with entities he was meant to be investigating.

There is nothing new in his claim that “resigning would be setting a terrible precedent because any person can fabricate a claim against a public official”.  It is the same excuse we have heard before most notably from the embattled commissioners of the Independent Electoral and Boundaries Commission. The defiant language is reminiscent of similar statements from cabinet ministers such as Anne Waiguru and Amos Kimunya, who memorably declared that he would rather die than resign. In fact, there is a long and unsavory history of refusal to resign, or to step aside, whenever the integrity of public officials is questioned.

Professor J. Patrick Dobel, of the University of Washington in his article entitled The Ethics of Resigning published in the Journal of Policy Analysis and Management, states that “resigning from office is a critical ethical decision for individuals. Resignation also remains one of the basic moral resources for individuals of integrity. The option to resign reinforces integrity, buttresses responsibility and supports accountability.”

The impetus for resignation flows from the understanding that public office is held on trust, the belief that what matters more is safeguarding the faith that the public has in the mechanisms and systems of democratic governance rather than the individual culpability of office holders. In fact, a principled resignation is paradoxically a reflection of the abundance, not of the lack, of personal ethics among such officials.

Kenyans yearn for such displays of integrity from the folks they pay to manage their affairs. But sadly for a country where the abuse of public office for private gain has been elevated to an art form, personal interest has always seemed to trump public interest. Whether it is as a result of principled policy disagreement or because of allegations of wrongdoing, politicians and bureaucrats alike have been loath to let go of their jobs, many time preferring to be pushed rather than to jump.

One can take lessons from the resignation of the immediate former British Prime Minister, David Cameron, over the loss of the Brexit referendum. It did not require the hullaballoo of street protests or parliamentary committee decisions to force him out. The decision was personal, the stinging rebuke delivered by the electorate sufficient. Contrast this with the actions of then President Mwai Kibaki, who after losing a referendum on a new constitution in 2005, chose to fire those whom the public had sided with. It is clear that he did not think his mandate to govern was in any way affected by the fact that the people in whose name he claimed to do so, had disagreed with him on such a fundamental issue.

On the other hand, one could also question the actions of the “rebels” in Kibaki’s cabinet, led by Raila Odinga, who, despite their disagreement with the official government position on this most basic of all issues, would themselves not contemplate principled resignation, but rather, opted to hang on till they were fired.

The fact that resignations from office are so rare in Kenyan history is thus a telling indictment of the logic that permeates our pretend democracy where government is divorced from the consent and will of the governed. As Kinisu’s explanation demonstrates, it is a system that privileges the position of officials above the credibility of the institutions they lead; one that is less concerned with what the public thinks than with the private tribulations of the elite that lords it over them. This is the real and far more terrible precedent that Kinisu seeks to preserve by his refusal to jump.

Being African Is Not All It's Cracked Up To Be

When the prolific columnist, Charles Onyango-Obbo, wrote that the International Criminal Court “had finally made Kenya an African country” he meant that the government’s reaction to the trials had aligned the country more closely with policies in much of the rest of the continent. I think there is another, perhaps more profound, sense in which Kenyans have become Africans.

To begin with, I have always been uncomfortable with the notion of “Africa”. It has not been apparent to me what, apart from an overabundance of pigmentation, I am supposed to possess in common with most of the other billion or so residents of the second-largest continent. And far from simply describing people from a place, the term “African” has come to imply some sort of historical, metaphysical and supra-cultural bond, which is loaded with all sorts of flattering and not-so-flattering stereotypes.

Sadly, many of my fellow Africans have been content to reflect and enact the tropes of Africanness. A favourite one is that of the “African Big Man.” No, I don’t mean of the well-hung variety, but rather the kleptocratic and genocidal tyrant-for-life who nonetheless commands the unquestioning loyalty of his tribal folk because their only goal in life is the extermination of their ethnic rivals.

The African Union has become an unfailing mirror of these reflections. At Its summits, the continent’s Big Men (and few Big Women), regularly get together, it seems, to commit ever more outrages on our common sensibilities. At Kenya’s instigation, last year’s pow-wow in June in Malabo, Equatorial Guinea, voted to expand the jurisdiction of the yet-to-be-established African Court of Justice and Human Rights to cover international crimes, with the caveat that the Big Men as well as their senior government pals would be immune from prosecution while they remain in office. The move was meant to deliver Kenyan President Uhuru Kenyatta and his Deputy, William Ruto, from the clutches of the ICC. And it was welcomed by their fellow Big Men who are wont to remain in office for rather longer than their subjects can reasonably expect or tolerate.

Any idea of accountability in this life is an anathema. Kenya today provides an excellent example of the state continually frustrating any attempt to punish either current or former government officials or their misdeeds. The report of the Truth, Justice and Reconciliation Commission, which named almost every star in the country’s political firmament, seems to have met its end in the National Assembly where it went to be “improved” by the very people it mentioned adversely.

As a result, Kenya’s two fabulously wealthy and still-breathing ex-presidents, Mwai Kiabaki and Daniel arap Moi continue to live lavishly on the public purse despite widespread reporting, countless commissions of inquiry as well as interminable police investigations concluding that their tenures were characterised by officially sanctioned murder and theft. None of their senior officials have been pursued either. On the contrary, the current administration has simply picked up where they left off. In fact, during the most recent AU summit, the Kenya government maintained its single-minded determination to ensure that African potentates never again have to endure the prospect of facing justice.

And a new crop of leaders is learning just how useful this “Big Man” syndrome can be. Recently, two first-time legislators were caught on camera at a weighbridge trying to throw their weight around and intimidate police. The problem? A truck belonging to one of them had been impounded for not having the necessary paperwork. In less than two years, they have learnt, that in the Big Man tradition, the rules don’t apply to them.

Of course impunity has always been a large part of Kenya’s story. But with our support for the government's exertions at the AU, we appear to have thrown our hat in with that community of nations that defines itself solely in terms of its powerlessness. A site of perpetual victimhood, of constant and exhausting struggle against imperialism and colonisation. A place of contradiction where the foreign-funded AU can, without the slightest appreciation of the irony, declare that the equally foreign-funded ICC, where its members constitute the largest block, with an African prosecutor and judges, is a tool of imperialists.

By becoming Africans, Kenyans have accepted to be faceless, nameless victims. To have a cheap and expendable existence. To live at and for the pleasure of Big Men. To repudiate “foreign” notions of accountability. We have accepted that the continent should first deliver for the powerful, before it delivers for the multitude. If that sounds familiar, it is because it should be. To become an African is to go back to the roots of Africanness. To don the costume of moral and material backwardness spun for the continent by the Big Men from Europe who were determined to subjugate it and who have since been replaced by our home grown varieties. It is, in short, to accept our place at the bottom of the human pile.

Why Kenyan Presidents Always Have Bad Advisors

A version of this article was published in The Star

Kenyans are a peculiar lot. Even though we love to condemn and demonize the ruling class, we are forever reluctant to accept that any of the individuals that make up that class may themselves be individually bad or inept. Therefore we are constantly making up excuses for their failures.

For example, during the murderous and kleptocratic Nyayo regime, it was common to hear the dictator, Daniel arap Moi, described as a kindly and wise old man who had unfortunately been misled by his coterie of advisors. Mwai Kibaki similarly escaped much of the blame for the deadly rifts his administrative choices deepened within Kenyan society and which set the stage for the bloodletting that followed the disputed 2007 election.

The many fumbles that characterised Uhuru Kenyatta’s tenure have also been laid at the feet of bad advisors. Even his political rivals and critics have tended to lay the blame for his controversial decisions, from making illegal appointments of parastatal heads, to authorising the paying of billions of shillings to briefcase Anglo-Leasing type companies, to ignoring court orders, at the feet of the members of his kitchen cabinet.

The assumption that our rulers only want what’s best for us and are constantly being subverted by the hand-picked groups of courtiers and groupies they bring into office is both curious and delusional. And it prevents us from seeing the real nature of the regimes that continue to oppress and impoverish and marginalize large sections of our citizenry.

Take the discussions over the conviction of one Alan Wadi Okengo on charges of hate speech and for undermining the President’s authority as a public officer. The university student’s obnoxious and virulent postings of Facebook undoubtedly offended many and broke the law. From that perspective at least, his speedy arrest, prosecution, conviction and sentencing for hate speech for calling for the deportation of Kikuyus to central Kenya is to be welcomed.

However, as many commentators have rightly noted, others who have spewed similar hate both online and offline have yet to meet a similar fate. Compare the treatment of Mr Okengo with that of Hon Moses Kuria, who has now twice been in court, charged with a similar offence. While the former was quickly sentenced to jail despite his offer of an apology and retraction, there has been a seeming reluctance to lock up the latter. On the Gatundu MP’s second visit to the courthouse, the prosecution, while declaring that he had broken his bail terms, did not appear interested in having him committed to jail. Further, the legislator has been offered a generous out-of-court deal where he avoids jail time by apologising for and recanting his remarks as well as convening a “stakeholders’ meeting”.

But the pundits seem reluctant to draw the obvious conclusion: that the government is not really interested in fighting hate speech. Rather, it is selectively applying legislation to target hate mongers who happen to be critical of it. So that the fault is not in its actions, but in its intent.

The second charge is even more worrisome. Mr Okengo was faulted for a posting that ridiculed the signing into law of the Security Amendment Act by “silly and bangi (sic) President” and which was then construed as undermining the authority of a public officer. By this ruling, the court has vastly expanded the scope of Section 132 of the Penal Code. It is instructive to remember that this section was enacted in 1952, the same year the colonial government declared and Emergency over the agitation for freedom and independence, and the same year President Kenyatta’s father was thrown in jail. That this law is still on our books more than half a century after independence is an indicator of how little the state has changed since then. The people, in whose name it governs, are still seen as the primary enemy and its laws still seek to protect the elite in power from the citizenry and to constrain any attempt by the latter to propagate unflattering opinions of the former.

The Security Laws Amendment Act, which was the trigger for Mr Okengo’s rants similarly betrays the nefarious intent of the government, criminalising as it does, independent reporting of terror incidents and amending the Public Benefit Organisations Act -which is yet to be gazetted nearly two years after its adoption- to allow for the classification of civil society groups (the criteria is to be determined later but given recent attempts to amend the same Act, one need not be a genius to guess what it will be).

Creating fear and compliance among citizens, media and civil society is the ultimate goal of this regime. This is to be achieved by rolling back the rights and freedoms gained over the last quarter century and reconstituting the untethered, oppressive surveillance state of the Nyayo era. Thus, when Uhuru Kenyatatta and his mandarins talk of improving security, what they really mean is securing themselves and their positions from the rest of us.

But the personal responsibility of the head of state for ineptitude, corruption and despotism is one of the great unmentionables of Kenyan politics. It is that which shall not be named, perhaps because in naming it, we fear that we would call it forth and deprive ourselves of the comforting delusion that he cares. The father of the nation must remain godlike, unblemished, peerless, all-knowing and all-seeing, a veritable repository of wisdom an altruism.

 As Kenyans, we must abandon the idea that those who take up the reins of power are necessarily doing so because they care for the rest of society. We must learn to be more critical and less accepting of the propaganda we are fed. As James Madison wrote, “If angels were to govern men, neither external nor internal controls on government would be necessary.” It is clear that we are not governed by angels and thus we must all oppose the attempts by President Kenyatta and his court to eliminate “the external and internal controls” on the government.

What We Must Accept In Order To Move On

It is easy to poke holes into the report of the Truth, Justice and Reconciliation Commission. And I'm certain many will seek do so. Journalists are, after all, a pretty cynical lot. We delight in nothing more than tearing down the edifices of officialdom and being the small axe that chops down the big, big tree.

So in the coming days, aspersions will be cast of the report's credibility given the delay in issuing it; the infighting within the commission which dates back to its establishment; the missing signatures on the land chapter and rumours of a minority report; the contradiction of condemning impunity on the one hand and, on the other, seemingly letting off Daniel Arap Moi and Mwai Kibaki despite acknowledgement of the gross violations of Kenyan's rights that happened on their watch.

All these, and many other valid criticisms, will be levelled at the report and at its authors (I've done my share). And it is right and proper that they are. A report such as important as this should be held up to the full glare of public examination. However, as we do so, we should be careful not to throw out the baby with the bathwater. For despite its failings, and there are bound to be many, this report is a monumental achievement for Kenya.

As we focus on the findings and recommendations of the report, we must keep in mind that it represents the first real and concerted attempt to tell an aspect of the Kenyan story through the eyes and experience of the Kenyans who lived it. The 40,000 or so statements collected by the TJRC, the largest number of statements of any truth commission in history, represent a living history of the troubled times that Kenyans have endured (and continue to endure). It is not a history that you will read in any of the textbooks that purport to teach our children about the travails of independent Kenya. And it is neither a perfect, or even complete, history by any means. It is, though, a valuable start in demolishing the walls of myth, lies and official silences that have surrounded traumatic events, and shedding light on some of the darkest chapters of our common history.

It was critical that these testimonies were recorded before memories faded and the events disappeared into the mists of time. Now the stories, some of which were only whispered in the shadows, have become part of the national record. Lodged at the National Archives, they`should provide fodder for historians seeking to tell a more accurate version of what happened in our past.

For the rest of us, it is important that we hear these Kenyans and recognise that their voices are representative of countless others who remain unseen. We must strive to hear them all. Their testimonies are raw and uncomfortable to hear, but we must not turn away. Their pain is real and cries out for acknowledgement.

But more than merely listening, this report should spark a discussion, a radical and honest reappraisal of our common past, a reformulation of our national identity with the aim of fostering a fresh and deeper understanding of the ties that bind us. The discussion must not, like has been the case previously, be restricted to the ivory towers of academia. It must go on in our homes, in our schools, in our places of worship, in our pubs and in our social gatherings. The stories in the report must become our stories; the pain, our pain.

And that is only the beginning. It would be unreasonable to expect that any one report, however well intentioned and resourced, could  capture every aspect of our history. I therefore hope the report sparks more exploration into the events that make up our past.  We must keep up the effort to fully document, to borrow from Chinese novelist Liu Zhenyun, the easily forgotten tragedies that occur in places abandoned by government and its enemies.

Finally we should, as a nation, seek to understand how that past still influences attitudes and actions today, how present-day Kenya is very much a product of its past. We must, for example, see the common thread running through the Shifta War, the many atrocities committed by the security forces in the North East and the recent "security operation" in Garissa. We must understand the militancy of the Nyanza politics through the prism of the region's nearly half century of political and economic marginalisation. For it only when we see these linkages that differentiate history from just another interesting story, that transform the accounts into a tool for refashioning our nationhood and for ensuring that we do not continue to repeat the mistakes of the past.

Then, and only then, can we truly and honestly accept and move on.

Are We Trying To Fake It Till We Make It?

There is an interesting scene in one of those dreary, black and white independence era TV documentaries that the media trots out every national holiday. A colonial settler expresses his shock and outrage at the brutality of the Mau Mau uprising. He seems genuinely outraged that a man to whom you have been kind enough to offer employment, whose kids play with yours and who you have even allowed to live on and farm a small corner of your land, could steal into your house in the dead of night and massacre your entire family.

Of course, what makes the statement so unbelievably cretinous is the idea that the Africans should have been grateful for getting back a tiny fraction of what had been stolen from them. It seems that the colonials had come to believe their own hype, that the country's bounty was theirs as of right. Today, I can't help feeling that we , inheritors of the artificial country and systems they created, have been similarly lying to ourselves, and have become victims of our own hubris.

The problem with fake societies is their people do not feel anything more than a superficial duty to them.

Consider the recent elections. We invested a great deal of money in technology meant to safeguard its credibility and disregarded all concerns about its efficacy. When it all failed, we were unwilling to even consider that the results might be fraudulent. Despite all our earnest protestations, we were not really interested in democracy or the will of the people or justice. We were, on the contrary, quite content to fake a free and fair poll. Like the settler, we were careful not to give it too much thought lest we discover what lay under our seemingly honest exterior.

Similarly we celebrate our new and improved constitution even when it seems to do nothing to regulate the behaviour of our famously avaricious politicians. We speak reverently of a reformed judiciary though it still seems incapable of delivering justice. We have a penchant to compare the young(ish) duo in Statehouse with US President Barrack Obama,  all the while pretending that it is normal to have an ICC-indicted president who has to be whisked through the cargo terminals of international airports, hidden from the press and whose hosts are camera-shy when he's around.

Today the carpet of economic growth covers many ills. On the back of GDP figures and the number of kilometres of tarmac and fibre optic cable, we are taught to believe that things are improving, the country is moving forward, that we should just sit back and enjoy the ride. As a result, buoyed by narratives of a rising Africa and blinded by the gleaming towers of our cities, we forget that we live in one of the most unequal countries on earth, where wealth is concentrated in the top ten percent. On a per capita basis, the biggest economy in East Africa, as we like to refer to ourselves, ranks only a mediocre 24th out of 48 sub-Saharan economies. One survey of the income distribution of workers in the formal sector found that the top 10 percent lived off monthly wages that were more than 6 times those of the bottom 90 percent. In fact, another study found that the top 10 percent of households control nearly half of total income while the bottom 10 percent take home nearly nothing.

We have little inkling of the country that lies beyond those numbers which is still very much a Hobbesian one. Where men live without security and in constant fear of a violent death; where life is "solitary, poor, nasty, brutish, and short." It is a place where people are set alight while crowds cheer and where young girls can be pulled kicking and screaming from crowded commuter buses to be gang-raped without anybody intervening.

We prefer the compartmentalized view, the trees to the wood. Thus we periodically rotate the thieves in government without tackling the systemic attitudes that incentivize bad behaviour. Like turning a blind eye to the rip-off that is the presidential retirement package while at the same time berating Mps for trying to get in on the enrichment act. We reach for legal bans as a quick fix to social problems even when we know that the laws are rarely enforced and even when they are, provide avenues for graft, can be ineffective and can even create worse problems. We thus celebrate traffic rules that fill the government coffers without doing anything about the anarchy on our roads and abortion bans whose only effect is to kill and maim our women and girls.

One would think it would be the job of the media to disabuse us of such inaccurate notions. But the fact is, the Kenyan media long ago shirked its duty to expose truth and to challenge our assumptions. In fact, it is itself a mirror of the society it serves. Famed across the globe as one of the most vibrant on the continent, it has produced award winning journalists by the dozen, many of whom have been snapped up by international networks. Yet back home,  they are not given to critical scrutiny and revel in sensational tales of superstition and sex. For our comfort and pleasure, they provide us with a smattering of sanitized news bulletins conservatively sprinkled atop a diet of entertainment and advertising.

Though loudly proclaiming their independence and objectivity, they nonetheless seem almost as ignorant as those they are supposed to inform. As I was writing this, the news anchor on TV was saying something about the Mandera clashes. She declared, with little apparent embarrassment, that the fighting had been going on "unreported" for 3 months. It was unclear whose job she thought it was to do the reporting.

It seems that we are a nation that is determined to fake its way through the world. That we believe we can continue to pretend to be virtuous or successful and all will be well. However, at the end of that road lies an inevitable and painful collision with reality. Like the colonial settlers, we will eventually discover that we cannot paper over the truth indefinitely.

De Fence Strategy

Fighting Words

The recent kidnappings of two disabled Europeans from the Kenyan coastal resort town of Lamu have brought to the fore concerns about the spill-over effects of continued anarchy in neighbouring Somalia. For much of the last 20 years, Kenya has had to contend with huge flows of refugees and illegal arms into its territory as well as conflict along the common border which have rendered the North Eastern province essentially ungovernable. The terrorist attacks of 1998 and 2002 in Nairobi and Kikambala were both planned from within Somalia and, more recently, piracy off the vast Somali coast and now the spate of kidnappings for ransom by Somalia-based bandit gangs are posing significant threats to the Kenyan economy. This raises the question of what the country is doing to address these threats.

Two weeks ago, while addressing a Mini-Summit on Somalia that was held at the sidelines of the United Nations General Assembly in New York, President Mwai Kibaki called on the international community to expand its support for the African Union Mission in Somalia (AMISOM), which was deployed in Mogadishu in 2007 under a UN mandate to help support the Somali peace process and protect the institutions that the process had generated. However, while thanking “Uganda and Burundi for their continued unwavering commitment in providing the AMISOM troops”,” the President did not explain why Kenya itself has not contributed troops to the mission.

The Kenyan reluctance can be partly explained by the fear that a peaceful, confident and secure Somalia may once more stoke irredentist ambitions among the Kenya’s Somali population as it did in the years immediately before and following independence, leading to the “Shifta War” of 1963-67. However, this fear ignores the fact that in the last 20 years, as Somalia dissolved into chaos, much has been done on the Kenyan side of the border to integrate the Somali population into the rest of the country. The harsh policy of emergency rule by decree was lifted in 1992 and, in a 2005 report, Dr. Ken Menkhaus, Associate Professor of political science at Davidson College and a former special advisor to the U.N. operation in Somalia, noted that “the introduction of competitive elections for Parliament has had the positive effect of opening up political space for debate in the region, and of generating legislative representatives seeking to serve the interests of their home constituencies.” Today, ethnic Somalis hold high positions in the Kenyan political and business landscape. Compare that with the situation 30 years prior, when a British commission of inquiry reported that 87 per cent ot the population in what was then known as the Northern Frontier District, favoured unification with Somalia and subsequently boycotted the 1963 elections in favour of armed insurrection.

While undoubtedly much more remains to be done to extend the benefits of Kenyan citizenship, including government services such as registration, security and infrastructure, as well as investment and economic opportunities to the North Eastern Province, it is clear that the fear of irredentism is a historical relic that should not stand in the way of stabilizing Somalia.

The fact is Kenya has been an instrumental actor in the search for peace in the Horn of Africa. Its facilitation enabled rival Somali groups to negotiate and develop the transitional structures at several conferences hosted in Kenyan towns. In fact, the Transitional Federal Government and Parliament were formed in Nairobi and from there, set out to establish a governmental presence first in Baidoa and then in Mogadishu. Kenya’s involvement was motivated as much by self interest, given the price it was paying for the anarchy, as by good neighbourliness.

Over the past year, the support of AMISOM has been critical in entrenching this peace process. With it, the TFG has achieved significant success in forcing the Al Qaeda-linked Al Shabaab extremists out of Mogadishu, and establishing a measure of relative security in the Somali capital. The confidence this has engendered in the population is evidenced by the fact that many Somalis displaced by the famine ravaging the country are opting to flee to the relative safety of the sea-side city, where international agencies have been providing humanitarian aid. This undoubtedly relieves the pressures that would otherwise be brought to bear on the already overcrowded refugee camps in Daadab in Kenya. In fact, as many refugees were heading north to the capital daily, as were headed south to Daadab, and while the flow into Kenya has somewhat diminished, that into Mogadishu continues unabated.

Further, the relative peace has created room for further negotiations among Somali factions with a view to the eventual conclusion of the transition and the return of permanent government. In his speech to the UN, President Kibaki alluded to the conference held a month ago in Mogadishu, during which a detailed Roadmap to achieving this, complete with benchmarks and timelines, was adopted. It is undeniable that these achievements in the security, humanitarian and political spheres will, if entrenched and expanded, have a lasting beneficial effect on the situation along the Kenyan border.

However, as demonstrated by last week’s horrific suicide bombing in Mogadishu, this is easier said than done. As President Kibaki noted, AMISOM urgently needs to be reinforced so that the city can be secured and the war taken to the extremists in the southern areas, where the famine has hit hardest and where criminal gangs benefit from the al Shabaab’s protection. The AU’s Peace and Security Council has already authorised the deployment of up to 20,000 AMISOM troops, which is what the field commanders say is necessary to secure the whole country. Further, the UN Security Council has committed to review the AU request for expanded support but pegged it to an increase in troops to the already authorised 12000, up from the current 9,000 now in Mogadishu.

It is up to African countries to make up the numbers. While encouraging noises have been heard from Sierra Leone and Djibouti with regards to deployments (the former have promised a battalion by April next year while the latter have also declared their intentions to send troops), nothing in this regard has been heard from the Kenyans. Yet with one of the more advanced and better equipped militaries in the region and the strongest economy to boot, Kenya would be a valuable addition to AMISOM.

The fact is, whether it likes it or not, the Kenyan military is likely to be increasingly drawn into a confrontation with the extremists on its North-Eastern frontier. The question is whether this will take the form of a unilateral, protracted, low-level conflict on the border or whether Kenya will join the AU forces in Mogadishu working for a holistic solution. In the final analysis, a strong Somali state, able to enforce its writ across the whole of the country’s territory, would be a boon to the fight against piracy, terrorism and radicalisation within the region as well as a reliable partner in combating cross-border crime.

In conclusion, just as the fight against piracy cannot be resolved by policing the high seas, so the pacification of the North Eastern border is not to be achieved through creation of buffer entities along the border or declarations of war against small gangs of bandits intent on kidnapping elderly, disabled pensioners in speedboats. The real and lasting solution lies in the pacification of Somalia through support for the peace and reconciliation process and the reconstitution of an effective, representative and democratic administration in Mogadishu. The participation of Kenya in this endeavour, utilising its considerable diplomatic, economic and, yes, military muscle, will not only expedite this outcome, but also ensure that its economic interests as well as the safety of its tourists are secured in the long term.

The Necessary Enemy of The People

Next week's issue of The EastAfrican will feature a glowing profile of Dr. Willy Mutunga and will be full of praise for the decision by the Judicial Service Commission to nominate him for the post of Chief Justice with Nancy Baraza as his deputy. With both the President and Prime Minister endorsing the two nominees, and with opposition from William Ruto's camp seemingly crumbling, Parliamentary approval appears to be a foregone conclusion. In a few weeks time, all things being constant, Dr. Mutunga will take office and change from being the champion of Kenyans' rights to being an instrument for their suppression.

Now, I have absolutely no reason to think that that Dr. Mutunga is anything other than what the EastAfrican piece will say he is: a fearless advocate for social justice. I have no doubt that he is as committed to uplifting the lives of ordinary Kenyans as anyone can be. My reservations have nothing to do with either his qualifications or his integrity. They, however, have everything to do with the nature of power and the propensity of my countrymen to ignore the lessons of history.

Power corrupts. A simple yet unfailingly true phrase. Kenyan's history is replete with fallen icons, former giants of matchless courage and integrity whose reputations did not survive a sojourn into government. In this pantheon you will find the likes of Mwai Kibaki, Raila Odinga, Martha Karua, Kivutha Kibwana, Anyang' Nyongo, Wangari Maathai, Kiraitu Murungi and Mukhisa Kitui, just to name a few of the most recent examples. By the time they were raptured into government, many of these had fought the good fight, risked life and limb, and endured torture, incarceration, beatings and tear gas, all in the name of upholding the rights of ordinary Kenyans. They inspired us, and brought the despotic government of Daniel Arap Moi to its knees, by the sheer force of their beliefs.

Yet all of them eventually turned into the very oppressors they were once fighting after we put them in power. Which brings me to my second point: Kenyans unrelenting and, frankly, psychotic sense of optimism. Despite all evidence to the contrary, we still persist in the illusion that if we just elect or appoint a nice guy, all will be well and we can look forward to living out the rest of our lives in comfort and luxury. We allow our institutions to rot while we wait for the promised Messiah, our very own Mandela or Ghandhi.

"Eternal vigilance is the price of liberty" is a line familiar to most. What is perhaps less well known are the words that Wendell Phillips uttered following these:"The hand entrusted with power becomes, either from human depravity or esprit de corps, the necessary enemy of the people. Only by continual oversight can the democrat in office be prevented from hardening into a despot." Phillips was only too well aware that the intrinsic goodness of the powerful could not be the ultimate guarantor of liberties. Similarly Kenyans should put their faith in their own ability to monitor and control the people in office, and not in candidates' records and words.

Now, I am not saying that qualifications, experience and integrity are unimportant. I hold them to be vital. However, like Phillips, I know they are just proof that the man (or woman) can do the job. They are no guarantee that he (or she) will actually do it. Past performance is fickle surety for future returns. Only "continual oversight" will deliver that and it will require that we treat all office bearers, Dr. Mutunga included, as "the necessary enemy of the people." I hope all the good folks applauding our next chief justice will keep this in mind.

Kibaki's New Year Message

The other day, I got to thinking about the President's New Year message to the nation and especially his rather oblique references to the indictments expected to be handed down by the ICC. While I do not expect that he will do our MPigs bidding and assent to their ludicrous attempt to pull us out of the Rome Statute, I nonetheless still believe that he shares their ultimate goal: to preserve the culture of impunity by protecting the organizers of the post-election violence. The only difference is that he proposes to do it, not through an unconstitutional Act of Parliament, but through a wholly incredible and implausible local tribunal.

Incredible because no one in their right mind actually believes that there exists the political will to actually dispense justice to the coterie of murderers named by the ICC prosecutor, Louis Moreno Ocampo. Otherwise, arrests would have taken place two years ago and by now their cases would be nearing completion.

Implausible because, as the President put it: "We must all take due care to ensure that the process of seeking justice, does not erode the gains we have made in the direction of national healing and reconciliation." So there we have it. The priority for a local tribunal is not to ensure that criminals get their due but rather to preserve the "gains" secured by the reconciliation process, which gains mainly consist of lucrative positions for the masterminds of the violence.

The truth is Kenyans today find themselves in the modern-day Manor Farm, witnessing what appears to be a row in the farmhouse. Mwai Kibaki and Isaac Ruto are each attempting to play an ace of spades simultaneously. Though voices may be raised, they are all alike. No question, now, what has happened. The citizens may look from MPig to President, and from President to MPig, and from MPig to President again; but already it is impossible to say which is which.

Where Kenya Leads, Others Follow

Why doesn't Laurent Gbagbo wake up and smell the cocoa? That is the question on the minds of many watching the unfolding events in the Ivory Coast. However, seen through the prism of recent closely fought elections on the continent, Gbagbo's actions are not only rational, but also sadly predictable.

The script was pioneered right here in Kenya: A relatively free and remarkably violence-free campaign -followed by an equally remarkably peaceful election- give way to a delay in announcing the presidential poll results, sparking a dispute over the count. The incumbent is then declared the winner (despite all evidence to the contrary) and hastily organizes an inauguration. A violent stand-off with the opposition quickly ensues followed by internationally mediated talks resulting in the incumbent retaining his position. The erstwhile "real winner" gets a prime-ministership and a share of the government in return for his acquiescence in the robbery.

That, in brief, is how you rig an election nowadays.

Zimbabwe's Robert Mugabe was quick to cotton on to the benefits of the plan. Now it's Gbagbo's turn. He probably thinks that all he has to do is tough it out for a few more weeks and the West, anxious that the world might run out of chocolate, will cave in and call for a negotiated settlement of the "dispute." This would, of course, mean that Gbagbo would participate in such talks as de facto head of state ala Mwai Kibaki.

Welcome to African Democracy where we are all winners, even when we lose.

War and Peace-keeping

Si vispacem, para bellum is a well-worn Latin adage that translates as, "If you wish for peace, prepare for war." However to prepare for war, one must have an idea of the likely threats as well as which to prioritise. According to the Kenyan Ministry of Defence, the two-fold mission of the country’s armed forces, as defined by the Constitution, is “to deter aggression and should deterrence fail, defend the Republic; provide support to civil power in the maintenance of order.” But what does it mean to defend the Republic?

Kenya’s National Security Intelligence Services Act defines “a threat to national security” as espionage, sabotage, terrorism or subversion directed against the country’s interests; the destruction or overthrow of the constitutionally established system of the Government; violence promotinga constitutional, political, industrial, social or economic objective or change in Kenya; and “foreign-influenced activity” that is detrimental to the interests of Kenya.

Thus the military’s mandate does not preclude its intervening in internal matters to preserve and defend the state. In fact, the prospect of military intervention is domestic matters is not new in the region. Burundi, Rwanda and Uganda have been host to numerous coups d’etat by the military establishment, in most cases to the detriment of society as the military administrations proved to be much worse than the civilian regimes they deposed. In fact, two of the region’s leaders, Rwanda’s Paul Kagame and Uganda’s Yoweri Museveni, came to power via military force and thereafter sought to legitimize their rule through elections.

More recently, addressing an East African security meeting in October 2009, Uganda’s President Yoweri Museveni called for the creation of an East-African defence force to counter threats both from within and outside the region. And during Kenya’s post-election conflagration in 2008, Rwanda’s president, Paul Kagame, drew the wrath of the Kibaki administration when he urged the Kenyan army into action saying that he did not oppose military intervention when “institutions have lost control”. Ironically, according to the Financial Times, President Kibaki had himself considered imposing a state of emergency but the army resisted, fearing a split in their own ranks.Instead the army preferred a low-key role, distributing food and opening up blocked roads, though on at least one occasion it did step in to separate fighting mobs. According to a paper by the Kenya Human Rights Commission Executive Director, Muthoni Wanyeki, Agenda Item One of the mediation processes contemplated the possibility of preventive military deploymentto immediately end the violence.

However, in its interventions, whether internally or facing an external foe the military falls under the same limitations as described by Jakkie Cilliers of the Institute for Defence Politics in the case of the South African Defence Force. “It is part of the executive arm of the Government. It therefore does not have autonomy of action, or unlimited scope in defining its own role in society at large, except in so far as such actions or roles support, and are within the guidelines of national policy and objectives.”

A paper by Carolyne Pumphrey for the US Department of Defence states that while the traditional view of national security is that it is concerned with the preservation of state sovereignty (most especially its monopoly of force) and the protection of national interests, these interests are not confined to countries’ borders. If one compares Kenya’s territory to its ecological footprint- the amount of resources the country needs to maintain itself- the latter is far larger than the former.Therefore a threat to the country’s ability to secure supplies from without its territory, such as that posed by Somali pirates to shipping destined for Mombasa is a threat to its national security.

While the military can be seen as an instrument available to a sovereign government to provide security for its citizens and defend the nation’s vital interests, in the 21st century it may be necessary to modify this traditional approach, for more and more in today’s world protecting a way of life has moved well beyond the use of military power. According to Col. Dan Smith and Rachel Stohl of the Center for Defense Information, “interlocking if not competing political, economic, social, and environmental interests are tying together as never before the fate of sovereign states. In turn the freedoms of citizens in an ever growing number of nations are becoming intertwined in such a way that individual security is becoming increasingly linked to the achievement of security at the international level through the reciprocal implementation of policies driven by national priorities.” To paraphrase Dr. Martin Luther King, insecurity anywhere is a threat to security everywhere.

Therefore, a new paradigm of security has emerged which stands the Westphalian system, and its designation of the nation-state as the focal point of security, on its head. Referred to as “human security,” it decrees that the individual (or the collection of individuals known as the nation) is supreme, and not the institutions of governance. In this conception, the military’s purpose is not the protection of the state but rather the citizen. Within this paradigm, it is easy to understand the Kenya military’s queasiness about the proposed declaration of emergency during the post-election conflict. As one person, at the time described by the Financial Times, as being close to the senior command, put it, “The question the army has been asking is, is this a legally elected government? If not, and they deploy, are they supporting a ‘civilian coup?’”

However, this should not be taken to mean that the army always behaves itself when it comes to civilians. It has been accused of systematic murder, torture and scores of other human rights abuses in its interventions to quell insurgencies in Sabaot and in the country’s restive North Eastern Province. Similarly, Uganda’s military was accused of terrorized the very civilians it was supposedly rescuing from the clutches of the psychopathic LRA.

Such tactics, which breed resentment and anger, do little to further the military objective of pacification, as the US and its allies are discovering in Iraq and Afghanistan. More and more, the talk there has moved from the macho “winning,” with its visions of tidy victories and foes who know when they are beaten, to the softer “winning hearts and minds,” which recognizes that insurgencies are not defeated by capturing cities and bridges, but by embracing the people. It is a lesson the AU is yet to learn in Somalia, where it strives to secure a feckless government instead of the suffering populace. In Iraq, the troop surge, an emphasis on capturing and holding cities instead of withdrawing to the relative safety of green zones, as well as engaging with locals bore fruit. The AU should consider doing the same in Somalia.

This does not mean that insurgencies should not be fought militarily. According to Jane’s Information Group, the terror strikes on US and Israeli targets in Kenya in 1998 and 2002 highlight the fact that the country is at risk of attack by international terrorists. The country's geographical location bordering the conflict zones of Somalia, Ethiopia and Sudan has also made it vulnerable to infiltration by neighbouring rebel groups for use as a rear base or transit country. Similarly, Rwanda is threatened by former genocidaires who are also causing chaos on the other side of the border in the Democratic Republic of the Congo. The LRA continues to make Northern Uganda and parts of the DRC ungovernable. All these threats need to be met squarely and the countries should not shy away from military confrontation if such is called for.

But, whether it is confronting Al Shebbab on Kenya’s borders or the Interhamwe on Rwanda’s, the focus of policymakers should be to extend the fruits of peace to the populations that breed and host these elements. This might mean working with the more reasonable elements of these groups, or, in the extreme, direct military intervention. It would also require that the military starts to provide security and services to the beleaguered peoples on their side of the borders to prevent them falling under the spell of armed groups.

General Sir David Ramsbotham of the British Army notes that every military operation is, in itself, a man-made disaster because “the use of force is bound to result in damage, not just to life and limb but also to national infrastructures. Having inflicted or received that damage, the military are trained, equipped and accustomed to repairing it. Furthermore, they are accustomed to functioning under the Law of Armed Conflict, so conforming with the dictate of international law is not strange to them either.” Our troops, with the experience of policing war zones on other continents, should prove no less adept at doing it at home.

KIBAKMENDE

The Kenyan Anti-Hero

The Great Migration

Seek Ye First The Popular Kingdom

Déjà vu is the experience of feeling sure that one has witnessed or experienced a new situation previously although the exact circumstances of the previous encounter are uncertain. The inauguration of the East Africa Community’s Common Market as a step on the way to an envisaged political federation induced just such a feeling. The thing is, we have been here before.

The five Presidents congregated in Nairobi mirrored another, albeit smaller, gathering in the same city 46 years ago. In June, 1963, the leaders of the newly independent states of Kenya, Uganda and Tanganyika declared, “… we believe a political federation of East Africa is desired by our peoples. There is throughout East Africa a great urge for unity and an appreciation of the significance of federation.”

The three were being more than a little disingenuous. The political federation of East Africa has never been a people-driven affair. From the start it was a colonial project opposed by the very people in whose name it was done. Which is surprising, since we were East Africans long before we became Kenyans and Ugandans and Tanzanians.

The integration of the region began with the building of the Uganda Railway in 1895. This was rapidly followed by the creation of the East African Common market which started in 1900 with a customs arrangement between British East Africa (now Uganda and Tanzania) and German East Africa (now Tanganyika), the establishment of a Court of Appeal for East Africa in 1902, creation of the East African Currency Board in 1905 and a Postal Union in 1911. In 1917, the British colonial administration established a Customs Union and by 1920, when the Kenya Colony was formally established, the EACB was already issuing a single regional currency, the East African Shilling.

By independence, we already had more than 40 different East African institutions covering areas such as research, social services, education/training and defence among others. This lead Tanganyikan President, Julius Nyerere, to observe in March 1963, that, “a federation of at least Kenya, Uganda and Tanganyika should be comparatively easy to achieve. We already have a common market, and run many services through the Common Services Organisation…. This is the nucleus from which a federation is the natural growth.”

Yet 2 years later, the common market would disintegrate following Tanzanian proposals that each country establish separate currencies and banks. Frenzied actions to save the federation project, including the promulgation of a formal Treaty for East African Co-operation and the setting up of the East African Community, would come to naught as the EAC itself collapsed in 1977 and was formally wound up in Arusha on 14th May 1984. On the latter occasion Nyerere declared that he could not “pretend that this is a very proud day for East Africa”.

What went wrong? Quite simply, the leadership failed to carry the people along. The project was a forced marriage that made sense to and benefitted the elite few but was viewed with suspicion by and never properly explained to the common citizenry. As early as 1925, when the British government established an East Africa Commission chaired by Colonial Secretary, W. G. Ormsby-Gore to solicit views from Africans, people of Asian descent and Europeans on federation, the idea found “little, if any, support ... and in some quarters …definite hostility.”

The commission “received a memorandum against federation from the King and the native government of Buganda, and discussions which had taken place in parts of Kenya immediately prior to our arrival revealed that the suggestion was viewed with more than a little suspicion by all sections of European opinion in Kenya. All shades of opinion in Zanzibar are hostile to federation and we also received representations against federation from various Indian Associations throughout the three northern territories”. Africans were particularly suspicious of the motives and intentions of the colonists. In 1927, yet another commission, this time chaired by Sir Hilton Young, received a memorandum from the Kikuyu Central Association rejecting the idea of federation.

Without the bulwark of popular support, at independence the colonial enterprise of federation became hostage to the petty personal rivalries and jealousies of the region’s new class of leaders. By 1977, it resembled more a clash of heads than a union hearts.

Its current reincarnation is proving to be little different. A recent report notes that the majority of East Africa's 126 million people are not aware of the benefit of regional integration, let alone the process with most citizens viewing it as an elite project."The project has a lot of goodwill from ordinary citizens but lack of active involvement has left it standing solely on the political pillar, without the critical social and economic relevance that would make it a reality in people's lives," Prof Regina Karega, one of the scholars who conducted the study said. This lack of an integration of the peoples was in evidence in September 2008, when Kenyans kicked up a fuss over reports that the US President George W. Bush and Tanzanian president, Jakoyo Kikwete had discussed "instability in Kenya. It was further exposed earlier this year when Kenyans ripped up sections of the Uganda railway and openly called war over Ugandan military occupation of Migingo Island (population:250), an insignificant piece of rock in Lake Victoria.

It is acknowledged in the appellations of the organs of integration. In much of the rest of the world the name of the regional grouping tends to reflect the stage of integration which has actually been attained. African regional groupings and the EAC in particular, have used terms such as “Community”, and “Common Market” in their names more as a reflection of elite aspirations. Thus our customs union meant neither the abolition of internal tariffs nor synchronization of external ones, disputes over fishing rights and work permits are a feature of our “common markets”, the East African passport is only valid for travel within what is supposed to be a borderless East Africa and our federating countries still have territorial disputes.

The exclusive focus on reaching political and macro-economic milestones has left the process blind to the needs of the common man. While economic benefits of integration are touted (greater bargaining power in international arena; the larger market makes for a more attractive foreign direct investment (FDI) destination), ask any common East African whether last week’s ceremony means he or she can traverse the region seeking employment and you will probably get a blank stare. An East African Parliament and envisioned Presidency are not matched by moves towards a common East African identity and citizenship. In fact, they are assumed to be the same things. The legality of belonging to the EAC is thus confused for the feeling of true community.

In the 1950s, the then leader of Ghana, Nkwame Nkrumah, declared “seek ye first the political kingdom and the rest will follow” arguing that African countries should right away integrate politically. The East African leadership seems to have taken this literally. The assumption that they can create an East African kingdom to which the people will thereafter be added is dead wrong and needs to change. And there are signs that it is. Last week, The EastAfrican reported reported that the partner states are to establish integration centres at border points to sensitize the citizenry on the benefits of regional assimilation and that Kenya's EAC Ministry would use mobile phones to educate up to 17 million people on the Common Market Protocol. Hopefully this time the reality will prove different.

The Picture of Kibaki Gray

As corrupt as Zimbabwe and Sierra Leone and worse than Uganda, who says Kenya is not a failed state?

Ringera Finally Delivers

Commuting Justice? Why We Need The Death Penalty

In what Prof. William A. Schabas of the Irish Centre for Human Rights described as “very likely the largest commutation of death sentences in modern history”, the President of Kenya in early August announced that all death row inmates would not be executed and that their sentences would be commuted to life imprisonment. This move elicited a rare cacophony of praise from both local and international commentators, organizations and governments. In his statement, Kibaki explained that he was acting to relieve the over 4000 inmates’ “mental anguish, suffering, psychological trauma, and anxiety”. Of course, nothing was said about the suffering that this, as well as other moves to abolish the death penalty, is likely to cause in the society as large.

While capital punishment has existed in almost all civilizations, across the world it is increasingly falling out of favour. According to the Kenya National Commission on Human Rights, Currently, more than half the world’s states have taken steps towards total or de facto abolition of the death penalty and apply life imprisonment for the most serious crimes. And less than half of the countries retaining the death penalty actually execute prisoners. In Africa, 11 countries, including Rwanda and South Africa have banned state sanctioned executions. And even those that haven’t are remarkably queasy about the whole affair. Tanzania has not executed anyone since 1994. Uganda, despite President Yoweri Museveni’s declaration that “we shall shoot anybody who kills a human being” has neither shot nor hanged anyone in a decade. In Kenya, while an average of 750 people are sentenced to death each year, none has been sent to the gallows since 1987.

Ever since it came to power, the Kibaki administration has sought to abolish the death penalty is spite of the overwhelming public support for it. In January 2003, two weeks into Kibaki’s first term, then Justice and Constitutional Affairs Minister, Kiraitu Murungi, revealed plans to abolish capital punishment in the country by the middle of the year. A month later his boss ordered the freeing of 28 prisoners on death row and commuted the sentences of 195 others. Presiding over their release, then Vice President, Moody Awori, announced his intention to introduce a Bill in Parliament to abolish the death penalty, prompting the then Commissioner of Prisons, Abraham Kamakil, to declare his longing “for the day Parliament will remove the death penalty from our Constitution.”The sentence was still in the books when, in June 2005, Kiraitu again declared that the government was “committed to abolishing the death penalty”. It is a position which enjoys considerable cross-party support. The ODM’s William Ruto, has called the death penalty a "vengeful" sentence that served no helpful purpose and party secretary Prof. Anyang’ Nyongo has declared that "the death penalty is not a deterrent and should be abolished." Despite this seeming consensus, in August 2007 Parliament defeated a Motion, moved by Kasipul-Kabondo MP, Mr Paddy Ahenda, seeking to do exactly that.

In its Position Paper on the Abolition of the Death Penalty, the KNCHR lists its objections to capital punishment: the death penalty is the ultimate violation of human rights. It is a violation of the fundamental right to life, which the Government has pledged to protect under the Constitution and other international human rights instruments that it has ratified. Similarly, the death penalty amounts to cruel, inhuman and degrading treatment, which contravenes provisions of section 74(1) of the Constitution, the Convention Against Torture and the International Covenant on Civil and Political Rights.

To support its position, the Commission advances several arguments. However, most of them dissolve when applied to other forms of punishment. For example, it declares that “the hallmark of a civilised society is arguably the acknowledgement of human worth and dignity at the core of which is the principle of the sanctity of life, which should be most protected under all circumstances.” The suggestion here is that those who favor the death penalty have a less than total regard for value of human life. Nothing could be further from the truth. More than 130 years ago, the eminent philosopher John Stuart Mill spoke eloquently on the issue before the English Parliament: "Does fining a criminal show want of respect for property or imprisoning him, for personal freedom? Just as unreasonable is it to think that to take the life of a man who has taken that of another is to show want of regard for human life. We show, on the contrary, most emphatically our regard for it, by the adoption of a rule that he who violates that right in another forfeits it for himself."

Arguing against “the retributive eye-for-an-eye delivery of justice”, the KNCHR avers that “The use of (the) death penalty only lowers the standards of government to the mentality of the murderer itself; it only demonstrates that the government is not different from the murderer. We do not punish rape with rape, or burn down the house of an arsonist. We should not, therefore, punish the murderer with death.” If this argument were to be taken to its logical conclusion, then all forms of sanction would be declared immoral as all involve the denial of some fundamental right (life, liberty and property) which some criminal has previously denied to his victims. Prison terms, fines and community service require that we curtail the enjoyment of fundamental freedoms. Surely, abolishing all forms of punishment would be unlikely to deliver a society safe from crime. Secondly, to state that we cannot demand an-eye-for-an-eye recompense is to put the criminal himself in the position of determining what can or cannot be done to him. Since we do not wish to be like thieves, then society cannot take for itself a thief's hard earned property through a system of fines. The very act of thieving would thus deprive society of resort to this kind of punishment and kidnapping would automatically outlaw jail sentences. The criminals would be the new legislators.

The KHCHR believes that the death penalty does not address the victim’s pain and the suffering endured by the victim’s family since “whoever was murdered has no way of knowing and appreciating the punishment meted upon the offender.” This is a curious position to take considering that in the aftermath of the 2008 post-election violence and in answer to call for a general amnesty, the very same Commission declared its firm belief that “accountability for those accused of committing serious human rights violations…is a fundamental aspect of victims' rights to justice.” So which is which? Does the KNCHR believe that the dead have no right to justice?

The KNCHR’s objections to the application of the death sentence are similarly flawed. Take, for example, the sophistic argument that “enforcement of the death penalty amounts to cruel, inhuman and degrading treatment and punishment of the condemned person... In a de facto abolitionist state like Kenya, a person always lives in anxiety with the reality of death hanging over his or her head from the moment of sentencing.” What the Commission is really saying is that it is the failure to carry out death sentences that results in the prisoners’ (to quote Kibaki) “mental anguish, suffering, psychological trauma, and anxiety.”

Dealing with a similar situation, the Uganda Supreme Court in January ordered that all death sentences be carried out within three years. However instead of recommending that we abandon the de facto moratorium on executions, the KNCHR prefers that death sentences are commuted to life imprisonment. Are they seriously asking us to believe that this a morally superior alternative? Amnesty International, in a report titled Prisons: Deaths due to torture and cruel, inhuman and degrading conditions, declared that “prison conditions in Kenya are worse than in other African countries.” And this is how Wikipedia describes the situation in Kamiti Maximum Prison:

There is still no reliable water supply, with over 200 prisoners hauling buckets of water around daily. The inmates working in the ‘industry’ section are paid only 10 cents (kenya shilling) per day, as per the outdated 1940s legislation which rules the organisation. Within the prison, condemned "G" block is famed for its particularly brutal lifestyle, characterised by predatory sodomy and mobile phone confidence tricksters. The prison was built for 1400 prisoners, and it now houses over 3600 in conditions of unbelievable squalor… The authorities have banned any supplemental food…and malnutrition and ulcers have become far more prevalent.

Imprisoning someone for life under such conditions is surely “cruel, inhuman and degrading treatment and punishment.” In fact, the Tanzanian Court of Appeal, when considering the constitutionality of capital punishment in the case Republic v Mbushuu, quoted Paul Sieghart’s 1983 article in The International Law of Human Rights: “As human rights can only attach to living beings, one might expect the right to life itself to be in some sense primary, since none of the other rights would have any value or utility without it. But the international instruments do not infact accord it any formal primacy. International human rights law assigns a higher value to the quality of living as a process than to the existence of life as a state….the law tends to regard acute or prolonged suffering (at all events in cases where it is inflicted by others, and so it is potentially avoidable) as a greater evil than death, which is ultimately unavoidable for everyone.” From the human rights perspective, therefore, life imprisonment under the conditions prevailing in our prisons is a worse, not better, alternative to capital punishment.

The KNCHR paper also raises objections around the fallibility of our criminal justice systems and the irreversibility of death. The fear here is that we are bound to execute a few innocents. Again these objections dissolve when applied to other forms of punishment. If we insisted on an absolute measure of guilt (as opposed to the "beyond reasonable doubt" standard), then we would have no criminal justice system. And all punishments are inherently irreversible anyway. You cannot give back the years and opportunities that are denied someone who is wrongfully jailed or fined.

Concerning the deterrent value of capital punishment, the paper states: “There has been no proven correlation between the death penalty and deterrence of crimes and countries that still maintain the death penalty in their statutes have not seen a downturn in crime. A survey conducted by the UN in 1998 and later updated in 2002 found no correlation between the

death penalty and homicide rates. According to the study, the hypothesis that capital punishment deters crime to a greater extent than does the application of the supposedly lesser punishment of life imprisonment is flawed. In Kenya, for instance, the fact that death sentences are handed down has not deterred commission of crimes for which such sentences are implemented. The key to deterrence is not to apply the death penalty but to increase the likelihood of detection of crime, arrest and conviction.”

However, even here the KNCHR fails to see the wood for the trees. The fact is one would not expect studies to show a deterrent effect if executions are not carried out. The results of study conducted by Hashem Dezhbakhsh and Paul H. Rubin of Emory University and Joanna M. Shepherd of Clemson University suggested that capital punishment when actually employed has a strong deterrent effect; each execution prevents, on average, 18 murders. Another study by H. Naci Mocan of the University of Colorado at Denver and R. Kaj Gittings of Cornell University looked at all death sentences handed out in the United States between 1977 and 1997 and matched that with state-level criminal activity in the relevant time frame. Their results show that each additional execution decreases homicides by about five. More worryingly, each additional commutation increases homicides by the same amount, while an additional removal from death row generates one additional murder.

While the Kenya situation obviously differs from that in the US, we all have to be concerned about the possibility that by commuting the more 4000 death sentences to life imprisonment, President Kibaki may well have signed the death warrants of up to 20,000 innocents. As Cass R. Sunstein and Adrian Vermeule state in their paper Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs: “If the current evidence is even roughly correct, then a refusal to impose capital punishment will effectively condemn numerous innocent people to death. States that choose life imprisonment, when they might choose capital punishment, are ensuring the deaths of a large number of innocent people.” Surely, the first obligation of every government is the protection of its citizens. As John McAdams of Marquette University’s Department of Political Science puts it, "If we execute murderers and there is in fact no deterrent effect, we have killed a bunch of murderers. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of a bunch of innocent victims. I would much rather risk the former. This, to me, is not a tough call."

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