Why We Should Give Kimaiyo The Benefit Of Law

“The easiest way to gain control of a population is to carry out acts of terror. The public will clamour for such laws if their personal security is threatened.” This quote, regularly attributed to the Russian tyrant and mass murderer, Josef Stalin, should give Kenyans pause as we demand that the government take action to address the massive failure in security that the country is experiencing.

That there has been a near complete breakdown in the security system is beyond doubt. Citizens are being murdered with relative impunity along our borders and at the coast, and the resource-related ethnic violence raging unabated across the north has not spared even security officers. In the capital, women are afraid to walk the streets or take public transport for fear of assault by mobs of men and in Baringo, girls are openly subjected to illegal Female Genital Mutilation. Our wildlife sanctuaries have been turned into killing fields and despite the government knowing the people responsible for poaching, it continues unabated. In fact, according to one investigative report aired on KTN earlier this year, the poaching kingpins are being actively protected by the state.

Our security system is failing, and it is failing comprehensively. But in government circles, there seems to be a real reluctance to admit this. The standard response has been to claim that the security forces are actually doing a great job, that they have prevented numerous attacks (no details provided, of course), that the terrorists have been defeated (whatever that means) and clichéd promises of “beefing up security.”

It is clear that these excuses are wearing thin and the public can now see through them. The transparent attempts to pass off public relations spiel as serious security policy no longer works. Across the country, citizens are scared and are demanding that the government get its act together and protect them as it is sworn to do. However, recognising there is a problem is the easy part. Diagnosing what is causing that problem and coming up with a remedy that will not turn out to be worse than the disease is more difficult. The hardest part of all will be getting the patient to actually take the medicine.

Let’s take an example from our past. In the years and decades following the initial euphoria of independence, many Kenyans came to the realization that the state had turned rogue. It had not changed the colonial ethos and remained a parasitic entity, benefitting a few at the expense of the many. Its security forces, while nominally meant to protect the citizenry, in reality continued their colonial function of policing them. The security agencies were implicated in many abuses, including extra-judicial killings and assassinations, torture and disappearances.

As a result, when, following decades of agitation and resistance, the opportunity to negotiate a new social contract was achieved, one of the paramount objectives was to create a system that would make the security organs serve the interests of the people rather than those of the people in power. Thus the new constitution required that the National Police service be independent and gave its head, the Inspector General of Police, security of tenure. The President cannot fire him on a whim. Neither can he direct the IGP in how to enforce the law or tell him whom to arrest and whom not to.

In return, it was hoped the police service would exercise its mandate without fear or favour. In practice this has not turned out to be the case. The patient has refused to take the medicine. Police reforms have stalled and where we have laws, such as the National Police Service Act, they have failed to be properly and fully implemented. Similarly, laws requiring that Parliament authorize any deployment of the Kenya Defense Sources within the nation’s borders, which were designed to avoid the sorts of abuses recorded in the report of the Truth, Justice and Reconciliation Commission, have been regularly circumvented.

Thus, it is clear that we have a security crisis and that part of the problem stems from the unwillingness to implement the laws that sit in the books. However, we will need to do some more digging and thinking if we are to understand the scale of the problem we face and to come up with workable solutions. This is why it is imperative that we support the demand made the Occupy Harambee Avenue protesters on Tuesday, that the President fulfil his promise to institute a public commission of inquiry into the security failures. Such an inquiry should take a holistic look at the entire security architecture in the light of the threats and challenges that confront us and make recommendations.

In the desire for results, we must avoid being stampeded back into the era of dictatorship. Some have suggested changing the law to make it easier to fire the IGP, David Kimaiyo. Such a proposal has been made in the National Assembly by the Jubilee Chief Whip, Katoo ole Metito and by the Chair of the Departmental Committee on Administration and National Security Committee, Asman Kamama.

Whatever one may think of Mr Kimaiyo’s performance, we must guard against attempts to reintroduce the imperial presidency. It is better that we insist of the procedure to remove him, which involves petitioning Parliament and the formation of a tribunal, and more important to figure out why the IGP has not taken advantage of the independence afforded to his office to streamline the force and make it more responsive to citizen concerns.

I will end with an excerpt of a dialogue between Sir Thomas More and his daughter's suitor, William Roper, as set forth in Robert Bolt's two-act play, A Man For All Seasons, which I think illustrates the folly of chopping down the laws that protect us in an attempt to get at both the terrorists and the incompetent and negligent officials who enable them.

Roper: So now you'd give the Devil benefit of law!

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I'd cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned round on you - where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast - man's laws, not God's - and if you cut them down - and you're just the man to do it - d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

Why I Don't Think Kenya Is Serious About National Security

A version of this article was published in The Star

Security is now firmly back on the agenda in Kenya. The news media is today awash with coverage of the response to the weekend attacks on police and military installations at the coast and the murder of 24 policemen in the marginalized and restive North East. TV and radio talk shows, as well as newpaper column inches are devoted to a discuss ion of the possible reasons for the security failures and with questions over the future employment of the officials in charge of the security system. 

Curiously missing from this explosion of opinion is any reference to an address to “a high level seminar on national security strategy”given by President Uhuru Kenyatta on Friday, just hours before the Kapedo attack. In the speech, the President laid out his analysis of the security threats that the country is facing and the priorities that should occupy his government in defending against them.

Granted the speech is not his best effort. Convoluted and rambling, it appears to be more about being seen to say something clever than actually providing clear and succinct analysis and articulation of strategic priorities. Filled with fluff rather than serious policy choices, it is a major speech to senior security officials that reads like a first year undergraduate paper.

So perhaps it is no surprise that no one is seemingly interested in it. However, given that this was a speech meant “to begin a critical conversation on the identification, articulation and pursuit of Kenya’s national security interests,” it deserves more than just the cursory attention it has received in the press.

Here’s a brief synopsis of what he had to say. He first lays out a shaky case for the historical underpinnings of national security which he appears to understand narrowly as the struggle to resist foreign domination (not surprising given his troubles at the International Criminal Court). The threats to this, he avers, stem from the troubled neighbourhood we live in, the need to manage the youthful exuberance of many of our citizens, the poverty and inequality that is characteristic of our economy, the politicisation of national security, threats posed by global state and non-state actors and the weakness of our own state. The President sees the latter as “the leading cause of insecurity of all forms” and thus his preferred solution is to “build a strong state whose actions will be guided and constrained by the spirit and letter of our democratic constitution.”

But how do we actually build this “strong state”? He does not say. His much-touted 10-point plan turns out to be not much of a plan at all but rather a characterisation of what he thinks “strong state” should be able to do do. What is the role of other actors in the security ecosystem such as the armed private citizens we saw at Westgate and that are prevalent across the northern frontier? Or of the private security companies? That national security is not just a matter for the state but involves all of society appears to elude him as does the multifaceted nature of the subject.

In fact he appears unaware that, as demonstrated by the report of the Truth, Justice and Reconciliation Commission, the state’s demonstration of its strength has many times been the main driver of insecurity. Also the fact, as Jeffrey Isima of Cranfield University notes, that “in many countries of Africa [including Kenya], the provision of security has long been private in the sense that it was provided as a private good for the protection of particular groups, such as the ruling elite, to the exclusion of or against others, rather than as a public good.”

Further, his specious prescriptions that the state should “delineate the rights and duties of citizens,” or treat threats against “a single ruler or the democratic multitude” as the same, or treat citizen groups as “actors that may be drivers for other agenda” betray his own personalization and politicization of the security agenda, just as we saw him do in the aftermath of the Mpeketoni attacks.

Security analyst, Andrew Franklin, says “the President failed to recognize our refusal to implement the four security related acts even while spending in excess of Kshs 140 billion.” These include the National Police Service Act, which is meant to create a consolidated police service. Mr Franklin also faults the President for claiming that there is no "elite consensus” on national security aims and objectives. “This is false. There may be differences of opinion regarding tactics, short term strategies, methods and means but ultimate objectives --peace and security--are not seriously questioned,” he declares. Here, President Kenyatta’s speechwriters, in their hurry to take a dig at the opposition and civil society, seem to have confused disagreement over tactics with a row over strategic aims.

This pedestrian and cavalier approach of the President to the weighty challenges posed by insecurity demonstrates that his administration has primarily approached them as public relations issues. However, those in the opposition and many of us in the rest of society have not behaved any better. Mr Franklin notes that “to date the opposition offers only platitudes, clever comments and sarcasm. Nobody wants to express definite opinions about anything either because taking responsibility and perhaps being wrong are not characteristics of our collective leadership. Or they are simply uninformed and ignorant but too insecure to admit to any lack of knowledge.” 

 We seem to have forsaken our thinking caps and are only interested in simplistic “action” such as the resignation of officials or a withdrawal from Somalia. We have failed to create –and more importantly, are not seeking to create- an overarching analytical framework within which to understand the systemic and systematic failures in the security system, how they came about and how they can be fixed.

Thus there is little demand for the government to live up to its promise to establish a public inquiry into the Westgate mall attack or to publish the report of the probe into the fire that almost razed the Jomo Kenyatta International Airport; little interest in understanding the roots of radicalisation and disaffection in the historically marginalized communities of the coast and the north; little thought given to the organisation of our security forces or the proper role of the Kenya Defence Forces and the dangers, wisdom and legality of its extended and indefinite deployment within our borders. Even where we have investigated what went wrong, reports such as that published by the Independent Policing Oversight Authority detailing the police failures during the Mpeketoni attacks do not prompt change.

It is time we took our security seriously. Many of the problems we face have deep roots that will not be resolved by playing dress up or bullying communities as the state is trying to do or simply getting rid of one or two officials. We must go back and examine when the rain started to beat us, which as the Deputy President William Ruto has acknowledged, is many years and many regimes ago. We must strive to understand the causes of and reasons for our vulnerabilities, and ruminate over possible solutions. We must invite and consider the opinion and advice of experts both local and international.

In short, on all sides, we must treat the national security problem as an existential threat, not an opportunity to score a few points politically and publicly. We should insist on a well informed debate and, importantly, a comprehensive and public inquiry into our national security system with a view to identifying and correcting the problems, and where necessary, re-orienting priorities. Above all, let us all put on our thinking caps and figure out how we go about the business of making every Kenyan safe. It’s about time the adults came to the table.