The 55-year Fight For Kenya

Two elections in two months has not settled Kenya’s political crisis. But the impasse is not really about who will sit in State House. It’s a deeper question: it’s about who owns Kenya – its citizens or a historically entrenched political elite.

President, Uhuru Kenyatta, won the second edition easily after his main opponent, Raila Odinga, withdrew from the race citing the inability of the Independent Electoral and Boundaries Commission to carry out a credible poll. In fact, the reason the election was being done afresh was that the Supreme Court had annulled the August 8 version, accusing the IEBC of acting as if the Elections Act and the Constitution did not exist. His refusal to participate in last Thursday’s contest has now precipitated a deep political crisis.

Some have proposed that it is nothing more than a dispute between two of Kenya’s famously gluttonous and power-hungry politicians, each accusing the other of trying to get power through fraudulent means. Others blame the ethnicization of Kenya’s politics and the deep tribal faults within Kenyan society. Still others maintain that the country’s winner-take-all political system, which does not allow those rejected by voters a cushy and safe landing. In all this, the fate of individual politicians and of the country’s constitution takes on huge importance.

And yet all these diagnoses fail to identify the central conflict that lies at the heart of and connects all these issues – and that is the struggle to bend the country’s colonial and extractive state to the whims of a new and progressive constitution.

It is a war that has been silently waged for at least 55 years. In the run up to Independence in 1963, the two main African parties, the Kenya African National Union (KANU) and the Kenya African Democratic Union (KADU) premiered the main themes and power conflicts that were to dominate Kenya’s attempts to deal with the colonial state. According to the late Prof Hastings Okoth-Ogendo, KANU, the more popular of the two, prioritized the transfer of power over reform of the state, while KADU, which had already lost an election to its rival, was more focused in the limitation of that power in the interests of ethnic minorities.

In 1962, at the second Lancaster House constitutional conference, KADU insisted on a constitution that was broadly similar to the one the country was to adopt 48 years later. It established a Bill of Rights, created regional assemblies and government in an effort to devolve power from the center. KANU, on the other hand, reluctantly acquiesced, reasoning that when the party inevitably won power through the ballot box, it would be free to change the constitution.

And that’s what indeed happened. In less than a decade after independence, the constitution would be so mangled through amendments that in 1969, it was officially recognized as a different constitution.

Writing in 1992, current Attorney General, Prof Githu Muigai, explains:

“The colonial order had been one monolithic edifice of power that did not rely on any set of rules for legitimization. When the Independence constitution was put into place it was completely at variance with the authoritarian administrative structures that were still kept in place by the entire corpus of public law. Part of the initial amendments therefore involved an attempt - albeit misguided - to harmonise the operations of a democratic constitution with an undemocratic and authoritarian administrative structure. Unhappily instead of the latter being amended to fit the former, the former was altered to fit the latter with the result that the constitution was effectively downgraded.”

In short, under KANU, the colonial state and its logic of extraction of resources from the many to enrich the few -initially British colonials, but now a similarly tiny African political elite -prevailed and undid the constitution. What followed was an “eating” binge as politicians and senior officials and their families and friends grabbed whatever they could lay their hands on.

By the late 1980s, the looting and oppression had sparked a reaction from citizen groups, media and churchmen which featured a persistent push for a new constitution, even in the face of violent government crackdowns as well as state-led attempts to co-opt and hollow out their demands. The popular agitation came to fruition in August 2010 when the current constitution was promulgated which essentially was a reset to 1962.

Yet the colonial state did not just fade away. It had to contend with this new challenge and, at least initially, the political elite was happy to pretend to play along for as long as their position at the top was not seriously challenged. The more egregious aspects of the state that the constitution now abolished, were simply renamed and allowed to hide in plain sight: the hated provincial administration rather than being abolished, simply changed titles but was retained intact; the police, though nominally declared to be operationally independent, never actually behaved like they were -they still remained “a citizen containment squad” as the Ransley report had described them.

Though cloaking itself in the cloth of the constitution, the state refused to reform. Under Uhuru Kenyatta, it retained its authoritarian character but with a fresh, likable face. But all through, its violence was never far below the surface as was witnessed in the aftermath of its bungled responses to terrorist attacks such as the on the Westgate Mall in Nairobi in September 2013, when the government scapegoated entire communities to cover up its failures. and, more recently, in the brutal crackdown on people protesting the two elections in which nearly 70 people have died.

On August 8, the elite embarked on what they assumed would be another coronation of their chosen one. Everything was in place, including 180,000 policemen to take care of troublemakers in opposition strongholds as well as a carefully constructed plot and narrative. It wasn’t the first time they were doing this. As Stanley Macharia, proprietor of the largest broadcast media network in the region, told the Kenyan Senate last year, in all five elections held since the return of multiparty competition, in only one -in 2002- had the presidency gone to the person with the most votes.

The Supreme Court annulment of the August election, therefore, came as a real shock to the elite and was the first real attempt to use the 2010 constitution to challenge the power and status of the elite as the ultimate owners of the state. The response was quick and effective: legislative changes to virtually make it impossible for the Court to nullify another election, threats to the judges, and a sham election to sanitize what the Supreme Court had impugned. Soon Uhuru Kenyatta’s supporters were extolling the benefits of a “benevolent dictator”.

It is within the context of this historically frustrated effort to bring the colonial state to heel that we must locate the current political impasse. It must not be made out to be about the Luo vs the Kikuyu (although there is an aspect of that) or Kenyatta vs Raila (although that matters too) or election winners vs election losers (a much less convincing argument).

The real question is whether the wenyenchi (the owners of the nations) will give up their control of the state to the wananchi (the people of the nation); whether they will allow the constitution to dismantle and remake the colonial state into one that works for all Kenyans.

History does not offer much encouragement. However, as the low turnout (even the highest estimates come in at under 40%) for the repeat election suggested, there is broad agreement across the country on the need for elections to adhere to constitutional standards of being free, fair, simple, verifiable, transparent and credible. One poll showed that even in Kenyatta’s heartland, more than half of the people were happy with the Supreme Court’s decision to annul the poll.

The politicians are out of touch with the people. Their brinksmanship demonstrates that they are yet to learn the lessons of the 60s and that they cannot be trusted not to repeat the same mistakes their fathers’ made.

Which leads us to the question of what should happen now. There is undoubtedly a need to resolve the immediate political crisis and generate consensus on how to address the longer term issues. Talks, as have been proposed, between Kenyatta and Odinga would be critical to this but, as noted above, cannot be left solely to them. the involvement of other sectors of society such as civil society, the media and the religious establishment both as mediators and participants in their own right would help lay a framework that is not solely dictated by the interests of the two main protagonists.

The goal should be to establish a roadmap to a resolution of the crisis including an agreed forum for a comprehensive national dialogue which would address not just the immediate manifestations of the crisis but, more importantly, deal with the unfinished business of reforming the colonial state and addressing its legacy of abuse, marginalisation and impoverishment.

Kenya faces much more than an electoral crisis. For over half a century, the contestation over who controls the state has been allowed to take precedence over the need to reform that state so it works for not just a few, but for all its citizens. That must now change.

The Marital State: Why Divorce Won't Solve Kenya's Problems

David Ndii is at it again. In the aftermath of the election, he has revived talk of his incendiary proposal for divorce. Basically, he postulates that Kenyan ethnic communities are in “an abusive marriage” and if they cannot come to an accommodation, they need to consider going their separate ways. Despite being one of Kenya’s foremost public intellectuals, he is demonized by many in the ruling establishment and among their rabid supporters.

Although the proposal far preceded the elections, Ndii’s most recent comments were made and will be understood in the context of the election and especially the contested presidential poll, which is now the subject of a Supreme Court petition. The root of his argument is the perceived domination of Kenyan political life, and the opportunity to “eat” the national cake, by a few large tribes.

The current focus of the griping is the Kikuyu-Kalenjin axis inaugurated by the alliance of President Uhuru Kenyatta and his deputy, William Ruto. But the narratives of domination, by either a single community or an alliance of a few of them, and resistance to it are as old as the country itself.

The logic of oppression and extraction was built into the state by our founding fathers, the British colonialists. They created a structure of government that was meant to entrench their lordship over all they surveyed and to facilitate extraction from natives.

Local communities didn’t take too kindly to this and eventually ganged up to demand their independence. However, their inheritance from the departing and receding British was the colonial state, which they failed to fundamentally reform and instead fell into squabbling over who would control it. And always, behind this, was fear of domination, which is really fear of the state.

In the run up to Independence, the Kenya African National Union (KANU) party was created, almost overnight, as the vehicle for what was largely seen as a Kikuyu-Luo alliance to take over the state. It was immediately opposed by the rest of the “small” tribes who majorly ganged up under the auspices of the Kenya African Democratic Union (KADU).

The deck was shuffled again after KADU was swallowed up by KANU and the Luo jettisoned soon after. Though Daniel arap Moi, with his Kalenjin bloc, was nominally the number two in the party and in government, it was clear that for all intents and purposes the state now belonged to the Kikuyu elite. This was to continue until shortly after the death of Jomo Kenyatta. Now it was the turn for the Kikuyu elite to be tossed out into the cold where they joined their Luo counterparts to oppose the Kalenjin (Moi’s) state.

This alliance eventually forced Moi’s retirement and the re-enactment of history as the Luo were once again double-crossed – this time by President Mwai Kibaki – and kicked out of what again became the Kikuyu state. The violence that followed the 2007 election gave rise to the first all-inclusive government where elites from all communities got in on the feeding frenzy. The 2013 elections again saw the Luo shut out by the current Kikuyu-Kalenjin alliance. A partnership that is perhaps slightly more equitable than the version between the current President’s father and Moi.

What I’ve detailed above is a very simplified and simplistic model of Kenya’s history. However, it has the distinct advantage of helping us appreciate a fundamentally important fact that explains why Kenya is where it is today and why we go round in circles. The problem that we have been skirting for all these years is the state itself as a tool for domination rather than an expression of the people’s aspirations. We are fighting over who becomes the next oppressor, rather than trying to uproot oppression.

Which brings me back to Ndii’s argument. Last year, in response to his abusive marriage thesis, I wrote that Kenyans are actually in an abusive relationship with their elites, rather than with other tribes. The extraction that the state facilitates, and that is the real prize the elites are battling over, is from all Kenyans regardless of ethnicity – we all pay whoever gets to be the piper, some more than others, but that doesn’t mean we get to call the tune or avoid the rats.

In fact, the whole talk of ethnic domination is a device to hide state domination by the elite of all tribes, which has led to a situation where 8,000 individuals own 62% of everything. Dismembering the country will not fix this.

Clearly, as Ndii holds, there is in principle no reason why a discussion on secession or mutual separation cannot or should not happen. We should not fetishize Kenya since, as we have seen, it was not created for our benefit but rather as a tool for robbery. Think of that next time you feel compelled to sing its songs, salute its flag or declare its eternity. For most of the country’s existence, it has been little more than a mostly illegitimate political and administrative arrangement that we have been struggling to master. The 2010 constitution gave us a chance to begin to get to grips with that challenge and provides an agreed upon vision of how it can be made to work for us.

Part of that vision is decentralization as a cure to the overbearing central state. Since before independence, majimboism or its current iteration -devolution- has been at the crux of the struggle between those who were seen as domineering and the rest. It was one of the major issues that divided KADU and KANU. Although a pillar of the Independence constitution, which created 7 regional governments and assemblies, it was undone by KANU in the 60s which, among other things, simply starved the regional governments of revenue.

Today, devolution remains at risk. The fact that the vast bulk of the tax money is controlled and retained in Nairobi, where the elite congregates, rather than disbursed in the counties where the people are dispersed is in itself telling. There is a deep need to ponder the continuing centrality of the national Presidency in our politics (it was, after all, largely modelled on the colonial Governor-General) and the fact that it remains a potent symbol, not of unity as envisaged in the constitution, but of domination.

Simply put, the work of implementing the constitution is not done. It has only begun but the night is here and it is full of terrors. Only by doing the hard work of facing up to our history and rebuilding the state from the bottom up, not as a tool of oppression, but as a means to enable popular aspirations, can we hope to extricate ourselves of the vicious cycle.

We therefore must, as Ndii says, not shy away from scary discussions about the means we use to compel those in power to abide by the constitution, or even the possibility of separation if that fails. But we also must not be seduced by the easy, tribe-based formulations he offers, that only serve to mask the real nature of our state. However, the only way to truly appreciate what Ndii gets wrong, is to seriously engage with what he gets right.

53 Years A Colony

Every nation has its foundation myths. The Koreans, for example, have Tan'gun, the scion of a son of the gods and a bear-turned-into-woman who became the first human king of the people of the peninsula. Kenyans are not to be left out. Whenever national holidays roll around, the air is always thick with talk of forefathers and tales of the dreams that supposedly drove them to found the nation. Believing it has always required a little suspension of disbelief.

This past week was no different. President Uhuru Kenyatta used his Jamhuri day address to remind us about “the unity our fathers believed in, and enjoyed, unity without which they would not have won the independence war.”  Never mind that the Mau Mau actually lost the “independence war” and our “fathers”, and his father particularly, were hardly paragons of solidarity.

If we are called “to honour the heroism of those who won our liberty” as the President asserts, we must begin by being honest about what came before, how the past gave birth to the present and what we must change in order to create a better future for ourselves and for generations to come.

Being honest requires accepting some uncomfortable truths. Our “forefathers” did not found Kenya. It was created and built by the British. Here’s the rub. The state and its institutions were specifically designed to oppress and to extract from the local population and to concentrate wealth and power in the hands of an elite few.

The Mau Mau uprising was the culmination of resistance against this system that dates back to the dawn of colonialism. It is this system the many who went to the forest to fight, and the many who helped them, were committed to overthrowing. However, and this is a second uncomfortable truth, they lost. And though their efforts did expedite the grant of independence, it was not they who would inherit the state. Rather, it was handed over to a new, black elite that had little interest in reforming it.

"Will the elite which has inherited power from the colonialists use that power to bring about the necessary social and economic changes or will they succumb to the lure of wealth, comfort and status and thereby become part of the Old Establishment," future President Mwai Kibaki asked in 1964. In fact, as the report of the Truth, Justice and Reconciliation Commission confirmed, the "Old Establishment" was never overthrown and the colonial state endured.

So a third uncomfortable truth is that independence did not translate to liberty. President Kenyatta was lying when he spoke of “first age of heores” who “joined hands to overthrow the colonial order.” The oppressive colonial state persists to this day and has subverted almost every sincere effort to reform it. The first attempt was via the 1962 Constitution. A paper written 30 years later by the current Attorney-General spoke of a “misguided attempt to harmonise the operations of a democratic constitution with an undemocratic and authoritarian administrative structure. Unhappily instead of the latter being amended to fit the former, the former was altered to fit the latter with the result that the constitution was effectively downgraded."

After decades of struggle, six years ago we embarked on yet another attempt to reform the state.  And, perhaps predictably, the heirs of the “Old Establishment” are again at work trying to do to the 2010 constitution what their fathers did to its predecessor. They have maintained the authoritarian structures, such as the provincial administration, and introduced laws meant to curtail constitutional rights and have consistently operated in ways that either disregard the document or actively undermine it.

Being honest about our past will allow us to appreciate that the struggle against subjugation that begun in the last decade of the 19^th century continues to this day.  It will open our eyes to the fact that while our oppressors may have changed color, their methods and aims remain largely the same. It will also allow us to choose which of our “fathers” we wish to emulate. Those who stood up for the rights of the people, or those who became part of the Old Establishment? On that choice, our future will hang.