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.

No More Partying At State House

Earlier this week, President Uhuru Kenyatta summoned the press corps to State House to relay a message to the nation. However, he was addressing Kenyans, not in his capacity as the country’s CEO, but as a leader of one of 14 political parties affiliated with the Jubilee coalition.  The big news was, of course, that the parties had agreed to merge.

The choice of State House, the seat of the Presidency, as venue for what is plainly a partisan event was alarming. The constitution describes the President as “a symbol of national unity” but Kenyatta appears to be stretching the limits of this beyond what is acceptable. Party unity, even within the governing coalition, is clearly not national unity.

On the contrary, what the event highlighted is the creeping capture of the state by the party and the blurring of the lines between the two. And this is just the latest episode. The frequent and unseemly exchanges between the opposition Coalition for Reform and Democracy on the one hand and the Presidential Strategic Communications Unit on the other are legendary. They aptly demonstrate the latter's propensity to see themselves as more than just as civil servants working within the Presidency, but also as partisan agents of the Jubilee coalition.

One could also point to the curious case of Interior Secretary, Gen (RT) Joseph Nkaissery. I8 months ago, he was an opposition MP, having been elected on an Orange Democratic Movement ticket in 2013. Yet following his appointment to the Cabinet, he has been traipsing around his former constituency, pretending to be a member of the Jubilee coalition. So far, it seems, no one has asked whether he resigned his membership of ODM. It is almost taken for granted that going into cabinet automatically translates into joining Jubilee.

But why should this be of concern? Some on social media have suggested that the raging questions over the use of state assets were little more than just a storm in a teacup, a petty fuss over the use of microphones and presidential daises.  However, such thinking is dangerously ignorant of the lessons of Kenyan history. One of the reasons why the State House event left a bad taste in the mouth is the memory of the consequences of the fusion of the party and the state during the KANU era. That merger, which begun in the 60s under Uhuru Kenyatta's father and was completed under his successor, Daniel Arap Moi, was the foundation for a half century of abuses. As loyalties within government were steered away from serving the people and towards the party and its leadership, the state itself and the goods it held in trust for the people of Kenya were transformed into the personal property of the President.

In a very real sense, the cult of personality and the concentration of power in the person of the President that was engendered by Jomo Kenyatta, Moi and to a lesser extent, Mwai Kibaki, was essentially built on this fusion of party and state. Its legacy lives in the present day, when even nominally independent officials are loathe to go against the governing party line. The clearly partisan behavior of the police is a good example.

Further, as they say, the fish rots from the head. Other public officials will take their cue from the President. During the Al Shabaab attack on Garissa University, in which 148 people were killed, the elite GSU Recce Company was delayed in Nairobi as the police plane had apparently gone to Mombasa to fetch relatives of the Airwing commandant.

Separating the President’s personal and party affairs from that of the people is therefore no fickle matter. When asked about the appropriateness of hosting partisan political functions at State House, the President’s men are wont to point at US President Barack Obama's similar use of the White House. But while true, they neglect to mention that his party actually pays the US Treasury for the privilege, just as Obama pays for the daily meals, groceries and toiletries that he and his family get and use at the White House. Further, federal law prohibits federal employees and even elected representatives, admittedly excluding the President and Vice President, from conducting partisan business such as making fundraising phone calls, inside government buildings.

The Americans are certainly clear about the privileges their potentates are entitled to and go to great lengths to ensure public resources are not expended on party business. It is time we in Kenya followed suit.

Back To The Future

Every once in a while, just when you think you've figured them out, Kenyans can surprise you and give you an almighty kick up the backside. Yesterday was one of those days. And it was an almighty welcome kick.

Those who've been following this blog over the last few months will have been treated to fulminations on the fear and apathy of our nation in the face of monumental iniquity by those in government. I have held forth and pontificated on the myopia, incompetence and laziness of our journalists and the demise of our civil society. I believe much of that still to be true. However, on the streets of Nairobi, I think we may have witnessed the stirrings of a nation starting to awaken from a deep slumber.

For over ten years now, our famously greedy parliamentarians have been used to hiking their pay at will, and ignoring the loud protests made in press conferences held in five-star hotels. No more. Today the fight was moved away from sanitized conference rooms and back into the streets where we had taught the KANU government a thing or two about people power 2 decades ago. And that fact is more significant than a straightforward struggle over MP salaries.

Yesterday was all about going back to the future. It was exciting to see the campaigners old mixing it up with the new upstarts. Having lived through the mass action of the 90s, to see Rev. Timothy Njoya, Maina Kiai, Davinder Lamba and Yash Pal Ghai once more marching through the streets of Nairobi  in support of a new generation of activists led by the likes of Boniface Mwangi and Okiya Omtata brought a lump to my throat. After Boniface shamed us on Labour Day, here was the old guard stepping in to teach the new dog some old tricks of the trade. But the young puppy showed that he too had some aces up his sleeve.

There were also glimpses of the old alliances that had been so effective in pushing the reform agenda. Churchmen, activists and, belatedly, media. Even the police seemed determined to recreate the nineties atmosphere, charging at the unarmed and peaceful protesters with their rungus and tear gas and water cannon.

There are, however, crucial differences. This was not a mass protest against the government. It was, in fact, just a few hundred demonstrators advocating the government line against an intransigent Parliament. Secondly, one of the main pillars of that old alliance was missing -the opportunistic opposition politicians. It is they in the 90s who mobilized the people. Many, however, have since either been co-opted into the lootocracy or are still licking their wounds following defeat at the polls. Further, we were not fighting to get a new constitution, but to defend the new one we have from gerrymandering MPigs.

Still, the moment was significant. For the first time since the election, a group of people publicly and loudly refused to "accept and move on." For once, they refused the logic that it was better to keep the peace even when they were being screwed. They drew a line in the tarmac and stood by it. The moment was also significant because for once, the government let its mask of civility slip. The reaction we saw on TV was far removed from the polished and rehearsed State House presentations. It was the raw brutality that lies behind that facade. This was a government unleashed from the strictures imposed by media consultants intent on winning elections.

With a core of determined, bloodied but now blooded, activists and a government that may have overplayed its hand, the scene my be set for a rather quick end to the Uhuru's administration's honeymoon. Of course, there is still some ways to go. The people still need to be won over. Those who voted for President Uhuru will need to be convinced that they can hold the government to account without betraying their communities or being humiliated. Those who didn't, and particularly those who weren't entirely convinced that he won fairly, will also need to be convinced that continuing to participate in the process is still worth it.

The activists will need to make allies out of progressive politicians both within and without the legislature. To do so the activists must begin to articulate an agenda, one that might conceivably form a platform for a future electoral run. Finally, they will need to partner with the media. Here, they will be faced with persons just like themselves, newbies with limited experience of the 90s struggle and whose careers have been made in a relatively open era for the press. Most journalists today seem inclined, strange as it may seem, to give officialdom the benefit of the doubt, to be wowed by its propaganda. They will need to be shown the bigger picture, pointed in certain directions, brought up to speed on the issues and pressed into digging deeper.

All that will take time. In the meantime, if yesterday's protest proves to inaugurate a season of more intense questioning of official conduct and policy, then the protesters will have achieved a much greater victory than simply expressing public displeasure at the thieving ways of legislators. They will have given the nation the beginnings of a real voice and a real boot. If I were Uhuru, I'd be watching my backside.

The Nutty Professor

Prof. Makau Mutua, writing in the Nation, once again demonstrates the folly of seeing a new constitution as a panacea for all that ails Kenya. He correctly characterises the current machinations for miimum reforms as "an ideologically empty battle for raw political power" and goes to great lengths to demonstrate why the proposed reforms would neither deliver a democratised state nor address the critical problems at the heart of our disfunctional democracy. His proposed magic pill? "Holistic and comprehensive constitutional reform" of the sort that we have been chasing for the last twenty years.

In arguing against the minimum changes, he mistakes constitutionalism for a constitution and assumes that our ethnic-based political system is a liability that can be solved through legislative means. He also leads us into a political and intellectual cul-de-sac by implying that the imperial presidency, which is the main obstacle to reform, can be done away with in one fell blow by the enactment of a new constitution.

According to Joel Ngugi, an Assistant Professor of Law at the University of Washington, "a constitution does not mythically solve contested political problems. It provides a shared framework to rework, re-organise, re-funnel, re-think and re-frame these political problems. It is a product of political compromise." The tribal nature of our politics is not something that can be legislated into oblivion. It is a function of our diversity. While our political parties may be ideologically bereft, they do have real ethnic constituencies. The contest for political power is also a struggle by these constituencies for their rightful share of the national cake. Any good constitution would only provide a level playing field for that struggle not change the terms of it. In the light of this, any attempts to regulate the competition for power and make it a fair contest should be welcomed. While recognising that the IPPG compromise was instrumental in ejecting the KANU kleptocrats from State House, Prof. Mutua, by opposing electoral reform, sets the stage for the perpetuation of the equally kleptocratic Kibaki regime in power and further dilution of the prospect of real reform.

Secondly, Prof Mutua states that "the reason for Mr Kibaki’s failure to reform the state is that he inherited an imperial presidency" (a poor choice of words as one would think that an "imperial presidency" would afford, rather than deny, Kibaki an opportunity to change the system, if he so wished). The kind Professor does not, however, burden us with his views on how we would go about dismantling that institution before embarking on constitutional reform considering that the presidency would itself be the main target of those reforms. It is a classic catch 22: we have to remove the powers of the president, so we can have the necessary reforms to remove the powers of the president. I see things differently. The overaching presidency is the product of numerous constitutional amendments. Why not use the same process to cut it down? The sorry history of constitutional reform in Kenya has demonstrated that no incumbent will willingly cede the power of his office, literally at the stroke of a pen, by promulgating a new constitution. However, the same history shows that it is possible to extract a series of minimal compromises that when put together have the effect of instituting a new constitutional order. The ODM's (or LDP's or whatever-meaningless-acronym-they-chose-to-be-known-by's) clamour for minimum changes before the elections, while undoudtedly sef-serving, provides an opprtunity to do just that.