State of the Kenyan nation one year after the accord

Fellow Kenyans, it is one year since the National Accord was signed by four gentlemen: President Kibaki, Prime Minister Raila, President Kikwete and His Excellency, Kofi Annan. With the signing of that accord, the Tenth Parliament enacted the National Accord and Reconciliation Act (2008) and simultaneously amended the constitution of Kenya to put the act into force. One year later, every Kenyan has the right to take stock of: 1) What worked and what did not; 2) When some things worked and when some did not; 3) Why some things worked, and why others did not; 4) How some things worked as they did, and how others did not; and 5) Finally, who is responsible for any success and/or failures.

With these five factors we interrogate the Grand Coalition one year later with the object of holding it to account so that it may strengthen what worked and improve on what failed. These five factors are interrogated within four key indicators: 1) The survival of the coalition; 2) Commissions of inquiry; 3) Internally displaced persons; and 4) The Tenth Parliament.

SURVIVAL OF THE COALITION

The Grand Coalition is the first coalition government in Kenya’s history, at least in terms of what coalitions are: governments that are formed after elections, when no party can win a majority to form a government on its own. Most coalitions in the world, especially those in Italy, Japan or Israel, last about a year. The Kenyan one has clocked over one year, but of course not without factional fights through and through. But the government’s principals have weathered storms and tornados from their political lieutenants, storms and tornados which could have split the coalition. The two men have made it work, since as we say in Kenyan politics, the party is the person leading it: Kibaki and Raila remain the principals, and thus, they hold and wield power, even if some of the party noisemakers assume they don’t.

Nonetheless, there are other instances where the two principals were asleep on the job, such as when the Party of National Unity (PNU) was splintering, and now some members elected on a PNU ticket have already registered their own parties. Another example is of Raila when he was allowing some party riff raffs to dismiss the Waki Report. However, the two principals have demonstrated ‘statesmanship’ more often than not, where Kibaki has allowed Raila to really ‘head government’ in a de facto way, but also when Raila gave up on the protocol catfights with Kalonzo, by showing that it does not matter who is second, as well as when he stood firm against Mau forest encroachment.

Unfortunately, there is a need to point out that this coalition has the highest number of ministers and assistants in Kenya’s history. Efforts by civil society to have ‘not more than 24 ministers’ hit rock-bottom, when the two principals chose political expediency over a lean and efficient cabinet. It is quite disheartening that in a country reeling with hunger, abject poverty, high food and fuel prices, the two principals have allowed such a humungous cabinet, which continues to draw huge perks and allowances while the majority of its people live in deplorable situations. To make matters worse, the fiascos surrounding corruption in the maize and maize-flour dealings have continued to haunt this government.

COMMISSIONS OF INQUIRY

Four commissions were proposed during the mediation talks, namely the Independent Review Commission (IREC), the Commission of Inquiry into Post-Election Violence (CIPEV), the Truth, Justice and Reconciliation Commission (TJRC) and the National, Ethnic and Race Relations Commission (NERRC). The first two commissions completed their work and submitted reports to both principals and these reports were made public within a few hours. This worked well, unlike before when such reports were only known to cabinet. Although made public, the cabinet seemed splintered on what position to take.

What did not work was the way in which the IREC sidestepped assigning criminal responsibility to anyone at the Electoral Commission of Kenya (ECK) or any other quarters, including within the political parties led by the two principals. At least however, the IREC recommended the dismantling of the ECK. The manner in which this was done is not the subject of discussion in this commentary, but briefly, politicians changed the constitution to solve political problems, just like they have done for 45 years. Furthermore on the IREC, some terms of reference were to investigate the authenticity of the results and also the tallying process. Had they done a forensic audit, which had been recommended by Kenyans for Peace, with Truth and Justice (KPTJ), it would have been possible to know who actually won. But the IREC chose the simple route that it is impossible to know who won the presidential ballot. Come on, in the 21st century, with its forensics?

The CIPEV report was met with mixed reactions across political and ethno-social divides, but giving credit where it is due, Justice Philip Waki and company did their work well, especially the automated implementation timelines and ‘secret list’, which threw politicians into all manner of panic and disarray. Many Kenyans were also supportive of the implementation of the report, with a view to ending impunity. To date, while many still support its implementation, there has been some confusion on which way to go. Some have supported the proposed ‘local tribunal’ while others have openly stated that The Hague is the way to go.

Not to worry. Both are much of the same; the so-called ‘local tribunal’ is subject to much foreign influence in having four foreigners of the total six judges and a foreign chief prosecutor, while the Special Statute is reminiscent of the Rome Statute, but with some pitfalls nonetheless. The only difference is that the ‘local tribunal’ will operate in Nairobi and not The Hague. To avoid any doubt, if politicians mess up the ‘local tribunal’, Chief Prosecutor Luis Moreno-Ocampo should bring all those on the ‘list’ to The Hague immediately. In sum, the CIPEV was no without its legal questions and certain administrative weaknesses, but for the first time a Commission of Inquiry caught politicians by their horns.

INTERNALLY DISPLACED PERSONS

Over 200,000 internally displaced persons (IDPs) were rendered homeless and jobless in the wake of the post-election crisis. These numbers were only conservative estimates, as the true figures indeed could reach 500,000 IDPs. Those rendered homeless were either chased away from their homes or farms while others who had businesses in various parts of the country were left without employment. In addition to many other weaknesses, the government started a shoddy project called Operation Rudi Nyumbani (go back home), which disrespected the regional and international instruments that Kenya is a signatory to, disregarded profiling who and where IDPs were, and ignored the efforts of other stakeholders.

Eventually, one year later, IDPs are still lying in camps, especially those near to their origins, in so-called ‘transit camps’. Look at the hills and valleys of the Rift Valley, Nyanza and Western provinces in particular and you would be shocked. Some sort of ‘concentration camps’, littered with white or cream torn tents, are still evident from the ground and also from the air. Government may dispute this and buy newspaper adverts to rubbish credible reports by organisations such as the Kenya Human Rights Commission (KHRC), but the truth be told, many IDPs have not gone back home. Where to? While noble efforts of ‘compensating’ with some few coins were done, the government’s failure to admit culpability in the design, implementation, monitoring and evaluation of the project is simply dumbfounding.

TENTH PARLIAMENT

While the live broadcasts of proceedings represent a celebrated achievement of the August House, it nonetheless has always been fond of bringing itself into disrepute. It has many roles to play, but in the context of this commentary its chief role of legislating – as provided for in Sections 30 and 46 of the constitution – should bring it under close scrutiny. Looking the bills drafted for and/or passed by the Tenth National Assembly, and later on, assented to by the president, one is left puzzled. The Constitution of Kenya Review Bill, the Constitution of Kenya (Amendment) Act, the Truth, Justice and Reconciliation Act, and the NERRC Bill, among others, speak volumes to the levels of honesty, professionalism and integrity of the 222 MPs who comprise Kenya’s Tenth Parliament.

Their inability to seek the common good leaves one with a single conclusion: something is amiss in that house and it does not matter who occupies it. The majority of the MPs are new, but it seems the problems such as the disease of lacking quorum and betraying the common good through passing terrible legislation which plagued the Ninth Parliament still persist in today’s house, one year after the swearing of the incumbents. That is why P.H. Okondo, in the book A Commentary on the Constitution of Kenya, stated that what we need are the right systems and structures, and not merely the right men or women.

CONCLUDING REMARKS

One year after the Grand Coalition was formed it is difficult to find many good things to say. Nonetheless, the bag is mixed. While the principals have stood tall to steer the country towards seeking justice and reform, they have also failed to give leadership at some key points. An office such as that of the government’s spokesperson has not helped in the least, merely lying to the public about the true state of the government; indeed, this spokesperson should have been fired a long time ago. Despite the above scathing attack on the Tenth Assembly, some of its members have had their fair share of success, with some working closely with civil society on the very pertinent issue of reforms. One year later, the IDP problem remains the worst eye sore in this country, while the CIPEV report remains the most celebrated.

* Tom Kagwe is a researcher at the Kenya Human Rights Commission (KHRC).
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