Riven with divisions: Kenya’s singular tragedy

A bubble of blame is rising in Kenya and quickly becoming the currency of public political discourse, but it only belies the decay of a modern state that for a long time held much promise as the exceptional African example.

Public criticism and condemnation for politicians is rising to a chorus. Disillusionment with the failure to achieve many of the goals set out in the internationally mediated peace deal in early 2008 is the easiest and perhaps only point of consensus in the country. It has given rise to an oft-expressed despondency that now circumscribes the public mood.

This criticism is, however, only politically correct: It is generalised in nature and designed to deliver wholesale condemnation of the entire political leadership as selfish and useless in response to some desire for political neutrality. In truth, it camouflages a nation’s loss of faith in itself as well as the deep-seated divisions that rent the country less than 18 months ago and drove it to the brink of civil war. Like members of a support group, Kenyans use their shared despondency to hide their frustrations with the decision to force two ideologically parallel political systems to work together for five years.

The power-sharing deal that ended the political crisis in Kenya enabled the Party of National Unity’s Mr Mwai Kibaki to remain president, while accommodating the Orange Democratic Movement’s Mr Raila Odinga as prime minister. The two parties shared cabinet portfolios on an equal basis, but many other power centres remained intact. As that reality has sunk in, the popularity of the coalition government has plummeted from 89 per cent, according to a 2008 Gallup poll, to an abysmal 24 per cent this year, because of its ineffectiveness and lack of cohesion.

Implied in the agreement was that the stop-gap arrangement would be a transitional mechanism for delivering reforms the Kenyan public had been hankering for but which had been deferred for more than a decade, perhaps a generation.

The 2007 elections, though overloaded with the expectations of a whole generation, also presented an opportunity for entrenched conservative interests to protect the privileges they have always enjoyed.

A year before the elections, the African Peer Review Mechanism Report on Kenya, while scoring the country highly on development, identified six critical issues that were likely to plunge it into crisis. These included failure to conclude an overhaul of the constitution, the need to reform institutions such as parliament and the judiciary, addressing youth unemployment, poverty and regional as well as gender-based inequity, tackling grand corruption and intractable land issues.

The hurried and flawed deal has made disagreement a defining characteristic of the coalition government – the grouse revolves around the sharing of power and responsibility.

Unspoken in the public despondency is the truth that the political coalition was the last hope for a country that had cannibalised almost all its institutions of governance and destroyed its people’s faith in themselves.

Since the 1980s, Kenyans have been checking off institutions as soon as they let them down. First off was confidence in individual leaders, betrayed in the personality cult cultivated around former President Daniel arap Moi in the single-party decade. His successor, President Mwai Kibaki, has fared little better in building trust between himself and other political leaders on the one hand, and the public on the other.

The political party, a space for public expression gained after a hard-fought battle spanning over a decade, has been captured and corrupted. With over 100 registered at the time that Kenya went to the polls in 2007, the political party in Kenya had become something of a joke – sometimes organised in a briefcase and funded from the personal coffers of its leader, and sometimes having no ideology beyond the promotion of individuals’ electoral candidacy. No elections are held in these organisations and political competition remains anathema.

If political parties have turned mongrel, it is because there has never been a credible referee. The now-defunct Electoral Commission of Kenya destroyed Kenya’s last pretences to being a democracy, by delivering an election that a subsequent independent inquiry found to be so incompetent that no winner could possibly emerge.

The judiciary has lost its credibility as the arbiter of last resort, its officers having distinguished themselves as a special interest group that rabidly resists reforms aimed at injecting efficiency in order to win back public trust.

Weighed down by accusations of sloth, incompetence and corruption, the Kenyan judiciary has done little to inspire confidence in its decisions – remarkably, those with potential to resolve political disputes or deal with intractable problems such as corruption have left a lot to be desired. Today, the judiciary is seen as being singularly unsuited to arbitrate in electoral disputes, especially after the highest court of record rejected Mr Kibaki’s petition against Mr Moi’s election victory in 1997. It is in a similar quandary following the disbanding of the Electoral Commission of Kenya in 2008, with nearly 20 electoral disputes springing from the last election yet to be decided.

With a backlog of 750,000 cases, and no new hearing dates being issued this year, it is not the picture of efficiency – yet it has fought attempts to introduce a performance management culture in the way the courts work. Appointments to the judiciary are opaque, and assessment of effectiveness lacking.

The public loss of faith in the judiciary has created problems of its own. Police accustomed to conducting shoddy investigations no longer bother taking the suspects to court. They execute them instead. This trend has caught the attention of the United Nations Special Rapporteur on Extra-Judicial Executions who has called for radical reform of the Kenyan police, and recommended the involvement of the International Criminal Court in investigating police conduct.

Police have become a law unto themselves. They have abandoned even the pretences of attempting to be accountable.

Earlier in the year, the United Nations Special Rapporteur on Extra-Judicial Executions visited Kenya and indicted the police. The government has not acted on the preliminary report’s recommendations, which included presidential acknowledgement that extra-judicial killings are a problem and will no longer be tolerated. Additionally, the recommendation for the dismissal of the commissioner of police has met with open resistance with President Kibaki’s allies, as has the call for the resignation of the attorney general, described in the Special Rapporteur’s report as ‘the embodiment of impunity’ for his inaction on human rights violations.

Within weeks of the report’s release, two human rights defenders who had given evidence to the Special Rapporteur were executed in cold blood, in what was believed to be a police operation. The Kibaki corner of the government has resisted – if not frustrated – offers of help to investigate the killings. Human rights defenders continue to face direct and imminent risks to their lives, with at least 20 of them living in hiding in the country or abroad.

Security of the person in Kenya is not guaranteed. Although the political leadership agreed to disband all illegal armed groups, little systematic action has been taken because of the balance of power in government, which is seen to favour the continued existence of militia. In recent months, up to 40 people have been killed in citizen attacks against militia activity and subsequent reprisals from the illegally armed groups.

The rise of extra-judicial killings and the shrinking space for human rights defenders occurs in a time when media freedom is severely constrained by relentless official attacks, and political capture of the public sphere through ownership and advertising control of the media.

Even with the apparent problems in the security services, discussions on democratising the security services are discouraged to the point of being considered taboo by those that control them.

The public service, which has traditionally acted as the embalming fluid of government, creating a façade of life where it long ceased to exist, is riven with political and ethnic divisions. Openly partisan in the last elections and therefore beholden to the conservative forces that secure it, the public service views proposals for reform as inimical to its overweening influence.

Parliament, which often boasts of being the representation of the people, has become the epitome of personal greed and political irresponsibility. So discredited was the parliament before the 2007 elections that less than 40 per cent of its membership was re-elected. The high attrition rate in parliament has created a fatalistic sense of job insecurity in members of parliament. Most MPs show up in parliament to make enough money for the rest of their lives, often with no regard for the electorate. Itself accused of corruption and inefficiency, the legislature is a depressive institution for most Kenyans who wait to wield the big stick at the next elections. Over-criticised and pilloried, parliament has become inured to being the bad boy of Kenyan politics, raising members’ pay and voting against the very interests they are supposed to protect. Today, the strident criticisms that tar every MP have undermined any opportunities citizens might have at constructive engagement with their elected leaders.

The power-sharing agreement was created to secure delivery on the reforms outlined in the Africa Peer Review Mechanism report and condensed into long-standing issues by the mediation team. Overall, the assumption has been that the coalition would hold because it was entrenched in the constitution as a well as law. In any event, it has emerged that the power-sharing agreement, even with these safeguards, is a weak and flawed document. Without a significant shift in power relations, the entrenched forces that have spawned the crisis around the long-standing issues will continue to create obstacles to holistic solutions.

Initially timed to deliver reforms in a year, the mediation agreement now accommodates the political considerations of the parties to the dispute, which did not want an early election.

With election pressure off, the differences between the two political groupings have become blurred as various interests position themselves for the 2012 general election.

The lone smoking gun from the post-election crisis – the internally displaced persons (IDPs) – is an embarrassment the government has worked assiduously to sweep out of sight. As far as the government is concerned, the 663,000 people displaced by the violence and turmoil in the aftermath of the elections no longer exist. Contrary to the President’s claims that 80 per cent of the IDPs have been resettled, the countryside is still littered with transit camps away from the public spotlight. The removal of IDPs from the large camps has come at a heavy price: the government has used push factors such as cutting off food rations and water supply, forcible evictions and threats of further attacks to empty the camps.

The official policy of denying the problem has pushed many desperate people into areas where they seek work as itinerant labourers and petty traders, creating pressure socially and economically and making any efforts at reconciliation impossible to pursue.

President Kibaki, who is serving his last term and therefore ineligible to run, has become a lame duck, beholden to the people who secured his tenure at State House. He is likely to want to extend his patronage to them by creating space for his successors so that the political bloc he leads is not left in limbo.

Prime Minister Odinga has to calm a restless constituency that believes he was cheated out of victory and is keen on early payoffs for their political investment in him. He is expected to make another stab at the presidency in the next election, but such a contest is only possible if the political playing field is levelled through reform of the electoral system.

Since independence in 1963, Kenya has been in the grip of an ideological war between left and right, where the former wanted a radical departure from the colonial state and the latter was happy to tinker a little with it while allowing a few Africans to occupy the places left by the colonial masters. Several times, that conflict has approached boiling point, but never quite spilled over until the 2007 elections – ruled to be inconclusive.

Kenya’s singular tragedy has been that although the international community’s interest cowed the country into accepting the deal, it has not been forceful enough to discourage a regression to the political bigotry that characterised the 2008 crisis.

One factor that has emboldened the conservative forces that have captured power in Kenya is the equivocal finding of the Independent Review Commission mandated to investigate the 2007 elections.

The commission, chaired by South African judge Johann Kriegler, assumed that the unlikely union of sworn political foes would work and refused to make a finding on who won the election. The ambiguity of that report, together with the deliberate failure to find any individual culpable for the numerous election offences committed has created the impression that there are no consequences for what occurred. Its value-neutral verdict on the presidential elections – implying that no-one between Mr Kibaki and Mr Odinga won the election – has created a crisis of legitimacy that emboldens churches to call for an election. It is a call that those untouched by the violence are beginning to find attractive.

On the recommendation of that commission, an interim electoral management body is being crafted but all electoral disputes are on hold, the electoral roll suspended and the infrastructure for managing the transition of political leadership not in place.

The reform of the elections management system has been met with heavy resistance by erstwhile members of the discredited Electoral Commission of Kenya, with support from sections of the political leadership.

Other agreed reforms targeting the Judiciary, the security services and the public service have become theatres of conflict for politicians. Those who view the current system as favouring their chances of succeeding President Kibaki have thrown numerous obstacles and distractions in the path of reform. These forces are seen as enjoying greater executive power because of their proximity to President Kibaki. They have consequently continued to undermine the full implementation of the power-sharing deal, which would create opportunities for reform.

Another point of contention is the reform of the justice system, encompassing the security services and the Judiciary on the back of recommendations by the Commission of inquiry into the post-election violence. The commission’s report heavily indicted the police for ‘murder, gang-rape and looting’ and called for an overhaul of the security services to entrench accountability and end the culture of impunity. It attributed nearly 40 per cent of all deaths from the post-election crisis to the police.

The commission outlined atrocities committed by security forces and militia, and recommended the establishment of a Special Tribunal along the lines of the Rome Statute on international crimes. Parliament’s failure to create the special courts – outside the discredited justice system – is a testament of how culpable political leaders have seized important spheres of influence and are using them to protect themselves from punishment while securing their careers.

The crises identified through the mediation process are often broad and overwhelming: They include tackling structural inequality, youth unemployment, poverty, constitutional reform, national cohesion and managing ethnic diversity, reforming the land system and addressing impunity by entrenching transparency and accountability in public life.

Pursuing land reform means losing property for the landed gentry – people who own hundreds of thousands of acres of land now sitting in government. The reform agenda poses numerous threats for powerful individuals and interests. They are fighting back, and viciously.

Kenya is in a state of flux. Corruption has made a bold comeback – even under the tenuous system governing the country.

Constitutional review, which has made several false starts, is apparently on course. Yet, the committee of experts appointed to harmonise views has been starved of administrative support. It does not have offices, staff or transportation because no resources were set aside for it before its inception.

There is a desire among leaders close to President Kibaki to disengage from the mediation process because of the close supervision it was providing. Civil society has provided much-needed oversight on the mediation agreements, but it, too, is not homogenous. It is diverse and not agreed on the kind of uniform agenda to pursue. It is widely suspected that some civil society groups have been hurriedly organised to prosecute a conservative agenda that pays lip service to reform while defending the status quo.

Prime Minister Odinga’s supporters continue to feel that he has little real power and that his inclusion in government has only succeeded in eroding his credibility and popularity. Should he and his ODM (Orange Democratic Movement) party leave the government out of frustration, however, there are no clear requirements in the law or the constitution guaranteeing fresh elections. For now, their push for greater space and say in government is being met with heavy resistance from their coalition partners.

President Kibaki’s PNU (Party of National Unity), which gained international legitimacy through the power-sharing deal, might feel that a walkout by their coalition partners would not injure their position. A remote possibility exists for this section of politicians to withdraw from the coalition – thus excluding their pesky partners – and still continue to govern.

The self-same politicians’ greed for power might very well be what is holding the country together. Should the political marriage cease to make sense to either of the parties, it would foment a crisis of legitimacy for the government with unpredictable consequences.

For each, the fallback appears violent – use of the security forces to put down any forms of resistance for whoever is in government and an anarchic rise in citizen violence far worse than what transpired in the aftermath of the elections.

Unless the international community forcefully reengages with Kenya and progressive civil society finds a way to engage the middle class to reflect more on their role in rescuing the country, the future looks bleak.

There is a palpable desire in Kenya for a clean break with the politics of the past, but those that would emerge to provide leadership face innumerable risks and palpable threats. The absence of individuals with unquestionable moral authority in the public sphere only feeds the despondency that has come to characterise Kenya.

* Kwamchetsi Makokha is a writer, journalist and communications consultant and a member of KPTJ’s steering group.
* Please send comments to [email protected] or comment online at http://www.pambazuka.org/.