Lessons from Kenya’s mediation process

President Mwai Kibaki and Prime Minister Raila Odinga’s absence from the Geneva talks is a manifestation of the problems that the mediation process has run into. The mediation process is vulnerable and in a crisis because Kenya’s political leadership has continuously and consistently undermined it.

As the confidence of the political leadership has increased, so too have the prospects for a just peace diminished. Right from the start, at least one party to the dispute was reluctant about, if not openly hostile to, international intervention in the Kenyan conflict. This was evident in the rebuff of mediators from former Ghanaian President John Kufuor to South African lawyer Cyril Ramaphosa. Chief mediator Kofi Annan, who secured a deal despite being subjected to unwarranted personal attacks, appointed two successors who have not had an easier time either.

Increasingly, Kenya’s sovereignty is being used to project the conflicts in the country as minor and to disrupt mediation efforts before the real causes of the conflict are addressed. The mediation process should be insulated from the vagaries of local politics through increased international commitment and oversight. Kenya is regressing to the precipice of instability and the threat of open conflict because the divisive politics that preceded the 2007 election are back in place. The prevailing political climate threatens reform because the forces that precipitated the crisis feel unchallenged. They have not been destabilised in order to secure the delivery of the reform agenda. International pressure and sanctions – even at a personal level for various political actors – must be used in a targeted manner to de-legitimise these interests.

A conflict of interest is inherent in the entrusting the delivery of reforms to the parties to the dispute, as has happened in the Kenya case. The ground has shifted politically and the support that the various parties to the conflict controlled is no longer guaranteed. Resolving the problems takes away the insurance for the coalition government’s survival. There are no incentives for political actors to act against their personal interests. President Kibaki, who is expected to retire in four year’s time, has little incentive to resolve the problems identified by the mediation process. Prime Minister Odinga, on the other hand, would like to remain politically viable and will minimise the risks he takes. His positions on reclaiming the Mau Forest and acting on the recommendations of the Commission of Inquiry into the Post Election Violence illustrate his difficulties in delivering reform while not losing public support.

Reforms are about hard choices: if one is interested in political power, they can become overly expensive. Kenya’s political leadership is characterised by stalemate and paralysis because beyond the two principals in the mediation, there are other interests that feel threatened by the reform of the security services, the public service and the Judiciary. The spirit and vigour of the fight-back by the disbanded Electoral Commission of Kenya (ECK) through numerous court injunctions are a harbinger of resistance to reform from within the police force, the public service and the Judiciary. These institutions are part of the infrastructure of a deeply entrenched patronage system that must be dismantled if reform is to get apace. It is important that the actors who head these institutions are changed in order for institutional reform to occur.

Additionally, the international community needs to re-evaluate the mediation in order to properly assign responsibility for synchronising reform within a given timeframe to prevent overlap and internal conflicts. UN member countries as well as regional blocs need to speak loudly and clearly about the need to stay the course of reform in Kenya.

One of the important lessons from the Kenyan mediation experience is that at the critical points, it is necessary to deal with the principals at the top to minimise the influence of entrenched and hard line interests. Even then, broader participation in anticipation of a shift in the political environment can reduce the cost of carrying through a challenging reform agenda. Civil society and other citizen groups require support to articulate the demands for reforms that secure the public interest.

Although Parliament has adopted the reports of the special commissions formed under the mediation agreement, there is little concrete action on their recommendations. The Independent Review Commission’s (IREC) recommendations for an independent, lean and efficient elections management body is still not a reality, three months after the disbandment of the ECK. The laws and regulations around elections remain unchanged despite a great need to do so. Kenya is faced with a referendum that is supposed to be managed by the Interim Independent Electoral Commission (IIEC), yet the process of selecting commissioners has not shifted from the political considerations that discredited its predecessor. The reluctance and even refusal by IREC to inquire into political responsibility for the failed 2007 election and to establish the unvarnished truth and seek justice for it is partly responsible for this state of affairs. There are critical tasks ahead that revolve around a credible elections management body, among them the preparation of a new voters’ register, a national census and the redrawing of electoral boundaries. The disputes over the selection of the IIEC members have already eroded public confidence and the moral standing of the commission even before it comes into effect. This can have negative implications for any elections, among them the constitutional referendum. The international community, especially the United National Elections Monitoring Unit, should extend urgent help to Kenya in this regard.

Finally, it is likely that the political jockeying that has characterised the appointments to the IIEC could weigh down the selection of the Truth, Justice and Reconciliation Commission members. The political environment for the establishment of a Truth, Justice and Reconciliation process does not exist. This is because no action has been taken on the recommendations of the Commission of Inquiry into the Post Election Violence. Parliament has failed to make laws that would secure justice for the violence arising from the 2007 elections, and the Executive has not taken the necessary administrative steps to reform the security services and protect women. Kenya’s friends must enable the International Criminal Court to begin the process of bringing high-level perpetrators to justice, while at the same time insisting that a local tribunal be established to deal with lower level criminals. The replacement of the Commissioner of Police, the Chief Justice and the Head of Public Service will unlock the process of seeking truth and justice. Civil society organisations require support to build pressure from below by holding mock truth and justice tribunals.

Kenyans for Peace, Truth and Justice is a coalition of organisations and individuals who came together in the aftermath of the 2007 elections debacle.
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