While initiatives seeking to address ‘negative ethnicity’ in Kenya are ‘potentially useful and well meaning’, L. Muthoni Wanyeki believes that they fail to get to the core of the problem. There is, she argues, no real understanding of what equality and non-discrimination actually mean. Wanyeki deems there to be a misplaced focus on ‘whether or not we like each other’. She holds rather, that tensions in Kenya have arisen because there is an unhealthy cycle of discrimination and stereotyping that has become normalised. The focus in remedying this cannot then be on making Kenyans ‘like’ one another, Wanyeki argues, but on how to ‘regulate whether and how those feelings translate into actions; into discrimination’.

Following the arranged departure from Kenya of the Muslim preacher Abdullah al-Faisal back to Jamaica, L. Muthoni Wanyeki reflects on the curious circumstances behind the preacher's transportation out of the country.

L. Muthoni Wanyeki shares anecdotes from a friend working for a UN mission in a post-conflict African country. While the stories are amusing, says Wanyeki, what they really show is how hard it is ‘to re-construct even a semblance of normalcy following a war’.

With a mere 30 days remaining until Kenya's Harmonised Draft Constitution makes its way to Parliament, L. Muthoni Wanyeki stresses that throwing out the idea of proportional representation altogether would ignore the efforts of the report's Committee of Experts to address potential concerns with the system.

With Graça Machel set to re-visit Kenya this weekend as a member of the Panel of Eminent Persons overseeing the African Peer Review Mechanism (APRM), L. Muthoni Wanyeki stresses the need for all Kenyans to ensure that those in charge are not permitted to paint a rosy picture of 'achievements' for Machel's team.

Why are so many Kenyans unhappy with the work of the Committee of Experts charged with determining options for resolving contentious issues around reforming the country’s constitution, L. Muthoni Wanyeki asks in this week’s Pambazuka News. And will their disgruntlement end up defeating and derailing the latest effort to finally conclude Kenya’s constitutional reform process?

Last week the BBC published a story entitled , making public the fact that ethnic groups in the Rift Valley were rearming in preparation for future election violence. Apart from this being a very worrying story, the backlash this has had on Ken Walfula – who gave subsequent interviews to Kenyan newspapers on the matter – has been disconcerting, argues L. Muthoni Wanyeki in this week’s Pambazuka News. Ken Walfula is now facing charges of incitement and the circulation of false and alarming information from the Kenyan government. Furthermore, as Wanyeki points out, there has been both public and private discussion of rearming, such as that undertaken by the Kenya National Dialogue and Reconciliation Monitoring Project. This is an issue the Kenyan government needs to take seriously, the author stresses.

Following the resignation of Justice Aaron Ringera from the Kenya Anti-Corruption Commission (KACC) last week, L. Muthoni Wanyeki argues that rather than celebrating a supposed triumph of 'popular will', we should actually question the opportunity costs associated with a prolonged stand-off.

Last week’s United Nations General Assembly Special Session saw President Obama place America back on a multi-lateral path. But something else important took place at the session, L. Muthoni Wanyeki writes in Pambazuka News – the opening for signatures of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, a treaty pushed for largely by newly independent states emerging from colonialism and aimed at delivering ‘real changes in citizens’ material condition and realities.’

Kenyans have plenty to be angry about with their parliament, Muthoni Wanyeki writes in Pambazuka News, from the ‘outrageous remuneration’ it has given itself, to ‘its refusal to stand up for justice for the families of the dead and displaced’ during last year’s political crisis. But parliament’s disappointing performance is partly down to ‘the limited options available to the House, as representatives of the people’ when ‘either the Executive or the Judiciary behaves badly,’ Wanyeki argues. If Kenya is to ensure government accountability to the people and ‘real checks and balances among the three arms of government’, constitutional reform is imperative, says Wanyeki.

In the face of an ever greedy, self-interested ruling class, L. Muthoni Wanyeki considers what the majority of Kenyans could do to challenge the seemingly relentless ravaging of the public purse perpetrated by those in office. Firstly, Wanyeki suggests a tax boycott, taking the cue from the Langata Residents’ Association’s response to the Nairobi City Council, and secondly, preparing for new elections, albeit within a political system still in need of broad change. With the political settlement evidently having long reached its limits, Wanyeki argues for the need for the Grand Coalition Government to be entirely deprived of funds if Kenya’s politics is to move forward.

cc I am shaken. I am shocked. And that is, apparently, the intent. For all of us to be shaken, for all of us to be shocked and for all of us to hear the threat and heed the warning implicit in last week’s assassinations of Oscar Kamau King’ara and John Paul Oulu of the Oscar Foundation.

Let me be clear about this. I had questions about the Oscar Foundation. Last year, it appeared to me to be one of human rights organisations partisan to the Party of National Unity (PNU). I did not understand when or why it had made the shift from children’s rights work to human rights work more generally. I had questions about the methodology through which it arrived at its figures of disappearances and extrajudicial executions of those supposedly associated with the Mungiki. I remember us all laughing when Professor Philip Alston, the United Nations special rapporteur on extrajudicial executions, questioned them as to the sources of their funding, concerns apparently raised with him by the security services. For, unlike many of us within the human rights movement, the Oscar Foundation does not receive grants from the bilateral and multilateral donors or foundations.

But I found some of the ways they did their work innovative, such as running free mobile legal aid clinics in low-income areas; not just in urban areas, but also in rural areas. I knew too of the solid backgrounds of some of its staff and trusted that they – just as the rest of us – had information worth sharing with the UN special rapporteur as to the extent of disappearances and extrajudicial executions in Kenya. And I certainly never imagined – not in my wildest dreams – that their staff would pay the ultimate price for bringing that information forward: death.

I see now that I should have read the signs, the writing on the wall. We all must do so, for the build up was clear. Let me sketch the outline.

There are reports – many reports – from both national and international human rights organisations into the joint police–military operations against the Sabaot Land Defence Force in Mt Elgon. There are denials after denials after denials, and increasingly angrily ones. Finally, there are questions and pressure from governments with whom our government has security agreements and arrangements, and suddenly, a flurry of activity. There is a public propaganda campaign, with a state-sponsored documentary focused on the atrocities and crimes committed by the Sabaot Land Defence Force (SLDF), being aired repeatedly on almost all television channels over several weeks. There is also a parliamentary probe and a joint police–military investigation. What is the verdict? That nothing is wrong, that all the human rights organisations pointing accusing fingers are wrong, that their motivations are baseless and that they don’t care about the atrocities and crimes committed by the SLDF. The verdict is that they don’t care about the people; they simply did it to raise money.

Somehow, the issue dies down.

But then comes the report of the Commission of Inquiry into the Post Election-Violence (CIPEV). It is brutal in its treatment of the failures of the state security agencies. It notes that the Administration Police and the Kenya Police Force used such extraordinary force that no less than a third of all deaths are attributed to them. It notes that they also committed crimes ranging from looting to rape. It issues a set of recommendations for security sector reform, including the fast-tracking of investigations into and prosecutions of individual members of the security services who have committed rape.

The response? Pre-emptively, a supposed police oversight body that is not worthy of the name is instituted, along with the creation of a task force to investigate claims of sexual violence, from which all women’s organisations co-opted in quickly resign. There’s silence, then the announcement by the minister of Internal Security of Kenya’s supposed security architecture, a plethora of new laws and policies supposedly addressing the CIPEV report’s recommendations. But not a word about either individual legal or collective political accountability, which the CIPEV report had stressed.

Again, somehow, the issue dies down, helped in no small measure by the clamour for individual accountability of politicians for the violence through the Special Tribunal and the International Criminal Court.

But then comes the report of the UN special rapporteur, which finds the Kenya Police Force and the military in Mt Elgon guilty of torture, forced disappearances and systematic extrajudicial executions. The response is predictable: Denial, denial, denial.

And there’s more. The dis/misinformation and propaganda begins. The vice chair and a staff member of the Kenya Human Rights Commission (KHRC) are accused of being on the Mungikis’ payroll. Then there’s the build up. Matatu operators accuse human rights organisations of not caring about citizens and businesses affected by the Mungikis’ extortion and protection rackets. We are informed that the Mungiki have decided to demonstrate in favour of the implementation of the special rapporteur’s recommendations. The media does not question this, despite the fact that the Mungiki’s spokesperson denies that they are involved and despite the fact that, strategically speaking, it would be ludicrous for the Mungiki to do so at this time. The demonstrations supposedly happen. The supposed government spokesperson parrots the claims, informing Kenya that the Oscar Foundation is raising money for Mungiki through the human rights organisations that support Mungiki. He blithely ignores the facts that: a) the Mungiki make so much money through their extortion and protection rackets that they hardly need external assistance and; b) the Oscar Foundation does not receive external funding. Hours after his statement, the two staff members of the Oscar Foundation are dead.

For the record, the human rights movement has consistently and repeatedly called for the disarming and demobilisation of all armed groups, criminal gangs and militia in this country as per Agenda Item One of the mediation process. It has also said, however, that disarmament and demobilisation will entail far more than a heavy-handed security response. And it has said that even that heavy-handed security response must be within the boundaries of the constitution and the law, not to mention the regional and international human rights instruments we are party to.

If armed groups, criminal gangs and militia still exist in this country, they do so because of their relationships, complex and ever-changing with the political powers that be and the security services that those political powers control. This is obvious. This is why disarmament and demobilisation is so difficult to achieve. And this is why it is simply ludicrous to claim that groups exist because of the ‘support’ they get from the human rights movement.

We are clearly in dangerous times. The Kenyatta and Moi regimes reserved assassinations for those among the political powers that be. Human rights defenders and other intellectuals contended instead with illegal detentions, torture and forced exile. In the Kibaki/Odinga regime, the goalposts have shifted, and shifted backwards. This does not portend well, for any of us.

To his credit, Odinga came out loud and clear following the assassinations, calling for independent, external investigations. We wait to see what Kibaki will do. And that will tell us whether we’re all headed to the grave.

* L. Muthoni Wanyeki is the executive director of the Kenya Human Rights Commission (KHRC).
* Please send comments to [email protected] or comment online at http://www.pambazuka.org/

cc We are a year away from the shocking events of last year — a Presidential elections whose results (we are told) can never be definitively known and the violence that followed the belated (and then hurried) announcement of the supposed results. The net effects we all now know—over 1,000 deaths, a third of which were at the hands of our security services, women (and some men) sexually violated by perpetrators of all forms of violence, over 300,000 internally displaced from no less than four provinces, the destruction of homes and livelihoods —and too, the base of economy and staple food supply. Land is a time bomb — not waiting to happen (as it has already happened), but waiting to re-explode. We cannot take another explosion. This second year of the Grand Coalition government needs to protect us from the same. And we need to all ensure that it does, writes L Muthoni Wanyeki.

A MODEL OF SUCCESS?

The mediation process guided by Kofi Annan, former United Nations Secretary General, at the behest of the African Union and with the support of many bilaterals under the UN, is credited with saving the day. But there are many Kenyans, here and abroad, known and unknown, who contributed to the mediation process’ success.

An as yet untold story—how the Kenya Red Cross, tasked by the government (such as it was at the time) with the tacit support of the heads of UN agencies involved in humanitarian work ensured the face and leadership of the relief effort was Kenyan. Preventing the kind of feeding frenzy too often witnessed in other conflict situations as international relief organisations run roughshod over national efforts, compromising national ownership and, more importantly, the balance between relief and what is required politically to ensure the move from relief to sustainable recovery.

And there are still many untold stories relating to the relief effort—not just all of the Kenyans who gave of their resources to support the Kenya Red Cross, but those who acted where the Kenya Red Cross could not initially go.

However, relief alone obviously was not enough. The causes needed as much attention as the symptoms. Another as yet untold story—the numerous coalitions of citizens who came together to demand a return to peace. The former diplomats who initiated the Citizens Coalition for Peace, shuttling back and forth between the protagonists, trying to lay the ground for negotiations. Kenyans for Peace with Truth and Justice, the National Civil Society Congress and the women’s bi-partisan initiative, who condemned both the elections and the violence, demonstrating there were national voices opposed to the pretence that life could go on as usual and helped up the domestic, regional and international pressure for negotiations to commence. The academics who worked with them to develop scenarios eventually considered by the mediation process on how to move forward. The private sector lobbies under the Kenya Association of Manufacturing and then ultimately the trade unions who used those scenarios to expand their own capacity for bringing domestic pressure to bear.

Individual African states as well as various mechanisms of the African Union—from the Forum of Retired African Presidents to the panel of eminent personalities and the African Commission on Human and Peoples’ Rights—who ensured regional engagement and pressure until a compromise was reached. With the full support of individual member states and mechanisms of the United Nations.

Kenya thus may have been a dramatically unexpected African failure. But we were also, in the end, an African success — we were lucky. That the violence ensued so fast and unexpectedly that many domestic points of leverage—individuals and institutions were still here, standing and able to play a role when the state proved itself incapable and unwilling to do so. That is not the case elsewhere — Zimbabwe is one example, where the haemorrhage of its human resources and institutions has been on-going for almost a decade. And while there is talk of our having provided a model for intervention in times of crisis—with the UN now having established the permanent capacity for mediation efforts of this kind—it is therefore not a model that is necessarily replicable. Not just because of the domestic aspects to our success—but also because the regional aspects to our success cannot be counted on in all instances — the AU’s determination to intervene constructively here was itself dependent on many factors, including not just our geo-political strategic importance to the region, but also the pan-African connections of domestic players at all levels and the awareness and knowledge of how to engage the AU’s mechanisms and processes.

MANY UNTOLD STORIES

But success in those terms is, evidently, not necessarily success at definitively resolving both symptoms and causes. And now, one year away, re-visiting the substantive content of the mediation process’ agreements is important. A package of actions and reforms was agreed to — in fact, the scenario initially placed on the table for resolution of the political impasse proposed a coalition government whose mandate and term would be limited and tied solely to achievement of those actions and reforms. Some progress has been made, to be sure — but progress on the most fundamental of actions and reforms remains to be seen. And, as we enter into the second year of the so-called Grand Coalition government, we must re-focus our attention on the same — even amidst all the drama. distraction and noise created by the lurching of the Grand Coalition government from one new crisis and scandal to another. Electoral terms end far sooner than we imagine — evidenced, astonishingly, by the emergence of succession debates as early as last year — and we simply cannot (cannot) afford to enter into another electoral process in four years without resolution of the actions and reforms agreed to.

To follow up on the actions and reforms agreed to by the mediation process, Annan has his own monitoring and evaluation framework, developed by Kenyan academics. The Grand Coalition government too has an M&E framework — with many actions and reforms tasked to the Ministry of Justice, National Cohesion and Constitutional Affairs and others finding reflection in Vision 2030. But M&E frameworks aside, I want to refer simply to the mediation process agreements themselves — which more than adequately outline the basics demanded of us.

AGENDA ITEM ONE: ENDING THE VIOLENCE

Agenda Item One had to do with ending the violence, including ensuring the security services acted within the bounds of the Constitution and the law and disarming and demobilising all armed groups.

The Commission of Inquiry into the Post Elections Violence has established, damningly, the full extent of the failure of our security services to act within the limits of the Constitution and the law during the crisis. The National Security and Intelligence Service is condemned for having interfered with the electoral process. The Kenya Police Force and the Administration Police stands accused of not just accounting for no less than a third of all deaths during the period, but also of having committed criminal acts including looting and sexual violence.

The CIPEV thus recommended a wide range of security sector reforms — including addressing questions of chain of command, merging the KPF and the AP under a new Police Commission, establishing civilian, statutorily backed oversight and fast-tracking investigations into and prosecutions of, in particular, all individual members of the security services accused of sexual violence. Importantly, while noting that training of the security services in human rights (including women’s rights) is on-going, the CIPEV also stressed that training without accountability—at all levels is, ultimately, irrelevant.

Since the CIPEV report’s release, the focus has largely been on investigations and prosecutions of those found by the CIPEV to bear greatest responsibility for the organised violence in the north Rift and the equally organised counter-attacks in Central, Nairobi and the south Rift. What has escaped notice is thus follow up with respect to security sector reform. The KPF did, it is true, establish what it called an oversight body with some civilian participation — but this effort was dismissed by the CIPEV as insufficient to assure accountability. And the KPF also established a task force to investigate claims of sexual violence by its members — but women’s organisations coopted into that task force have withdrawn from it given their lack of influence over its work, its failure to investigate in a manner that would ensure women both come forward and receive adequate attention to fears of reprisals for having done so. The broader questions of security sector reform remain obscure to the general public. The process needs to be opened up — and, in doing so, the general public must insist that the security services do not manage to focus attention solely on questions of capacity (equipment, numbers, resources and training) but also address substantively questions of approach (accountability).

Questions of justice remain pertinent — for all levels of perpetrators, civilian and security service, not just those with greatest responsibility. The fate of the proposed Special Tribunal to try the latter is now uncertain, following last week’s events in the House—and, even if eventually established, the question is whether all the safeguards on its independence and operational capacity proposed by the CIPEV will remain in place.

As for disarmament and demobilisation of all armed groups, very little appears to have happened. Yes, the armed forces seem to have addressed the armed group active in Mount Elgon—the Sabaot Land Defence Force — but did so in a manner inconsistent with human rights. More importantly, the SLDF was not a protagonist in the crisis. Attention needs to be played to what has happened with the armed group that become increasingly organised during the crisis in the north Rift — what happened to its structure, its alleged training areas, its allegedly increasingly modern weapons. This is particularly so in light of recent warnings that preparations for renewed violence are underway — tied to the parliamentary discussions of the bills establishing the Special Tribunal. Similarly, attention needs to be paid to the allegedly breakaway/parallel Mungiki that was active in the south Rift during the crisis—for which funds had been raised and arms procured.

It is true that there have been repeated reports of disruptions of Mungiki recruitment drives and meetings over the last couple of months — with arrests aplenty. Models for disarmament, demobilisation and reintegration exist aplenty from Africa’s other armed conflicts. But the fact is that the incentives to disarm and demobilise here simply do not yet exist — for Kenya’s mass of un/and underemployed young men, groups such as Mungiki provide not just a source of identity and common cause, but economic livelihoods from protection rackets that nothing else on offer yet rival as well as the means for political engagement — however ultimately fruitlessly—through their constantly shifting political alignments with individual politicians or groups of politicians. It is clear therefore that Agenda Item One is far from being conclusively addressed — and that doing so will require far more openness to ideas and input on the part of those responsible for our security than currently is the case.

AGENDA ITEM TWO: RESTORING FUNDAMENTAL FREEDOMS AND ADDRESSING THE HUMANITARIAN CRISIS

Agenda Item Two dealt with the restoration of fundamental freedoms and the humanitarian crisis.

Critical limitations on fundamental freedoms — such as the ban on live broadcasts — addressed at the time obviously resurfaced in terms of the more obnoxious amendments passed to the Communications Act. What this shows — as does the fact that it has been virtually impossible to demonstrate peacefully in public since last year — is two things. First, it shows that the mindset that considers the enjoyment of our full range of human rights (including, notably, the rights to the freedoms of assembly, association and expression) an impediment to security persists. While this is not entirely surprising, given that our security is still precarious and the security services feel themselves to be on the defensive, it is unacceptable. It is also unstrategic as the more that people’s human rights are suppressed, the more motivation is provided for people to challenge security in more fundamental ways. Second, that there is an apparent dearth of ideas on how to achieve both — again, far more openness is required to help move forward.

As for the humanitarian crisis, yes, Operation Rudi Nyumbani has taken place. Yes, the initial, large and services camps for IDPs have been disbanded. But, a contested number of IDPs have simply moved into smaller, unserviced camps — in some documented cases, against their wills (and thus against regional and international standards for addressing internal displacement). And other IDPs have complained of both the insufficiency of the funds and resources provided for resettlement as well as corruption in the administration of the same.

Part of the problem has been conceptual. Not all IDPs were small scale farmers, with land to return to. Some of those who were — and were able to return — still find themselves unable to re-build and actually reside on their farms due to persistent security concerns, despite the additional police posts in the vicinity. But others, including many of those who were small and medium size business owners, renting both residential and business premises, cannot find landlords willing to rent to them again. Others were migrant workers on flower and tea farms in the south and north Rift, as well as Central respectively — and while some farms have individually taken responsibility to assure them of the safety to return, others have bowed to localised pressures to hire only those deems to be ‘indigenous’ to the locality. And while many community-based and provincial administration peacebuilding initiatives are underway, they have tended to focus only on the immediate — not the long-term grievances (such as land) among those considered now to be ‘host’ communities.

What is needed is a more careful categorisation of IDPs and their specific needs for resettlement—as well as a focus on the legitimate grievances of the so-called ‘host’ communities. Without the same, the resettlement process can only be tenuous.

AGENDA ITEM THREE: THE POLITICAL SETTLEMENT

Part of the political settlement was to be addressed by the Independent Review Commission. While ultimately unhelpful in terms of determining the specifics of what happened, the specifics of the effects of what happened in terms of supposed electoral outcomes at the presidential level and the specifics of all those individuals and institutions from whom accountability should be sought, the IREC’s report has been useful in terms of reiterating the need for fundamental electoral reform.

The Electoral Commission of Kenya having thus been made the sole scapegoat for the electoral farce, it has been disbanded with nothing short of alacrity. An interim ECK is now expected to be established, together with a commission tasked with the review of electoral boundaries. The latter will deal with one long standing electoral concern—the gerrymandering that has happened in the past that has ensured that one (wo)man’s vote is not the same as another (wo)man’s vote across the country.

While this is positive, it must be noted that the determination of new constituency boundaries is likely to be as politicised a process as all other elements of electoral reform expected to be addressed by the constitutional process—particularly that concerning moving away from a winner takes all electoral system.

The rest of the political settlement had to do with the establishment of the Grand Coalition government, about which there were three main fears. First, that the offices of the President and Prime Minister were equally weighted—which, as the tug of war between the PM and the Head of the Civil Service has shown, they are not. What this portends for the necessary constructive interplay between the Executive and the House with respect to reform is alarming—and needs to be addressed sooner rather than later.

Second, however, was the fear that with both sides in government (and such an unprecedentedly large government at that), we would lack an effective opposition. The obviously self-interested and unprincipled efforts at establishing a so-called ‘grand opposition’ notwithstanding, this is a fear that has clearly proven unfounded. Tensions persist between the two parties to the Grand Coalition government. Tensions also exist within both parties to the same—occasioned by succession concerns within the Party of National Unity and occasioned by differences between the PM and the Coast and Rift Valley blocks of the Orange Democratic Movement on matters ranging from justice to the Mau forest. What that means is that leverage exists between and within parties to the Grand Coalition government for issues normally brought forward by the official opposition to emerge—and that is a good thing—even if they emerge essentially to answer power plays of one kind or another rather than principle.

Third was the fear that the Grand Coalition government would not last. This fear too has proven unfounded — not a single parliamentarian has any intention of submitting to a new electoral process before her/his five year mandate. On the surface, therefore, we can expect the Grand Coalition government to last — however nominally. Below the surface, however, we can expect the configuration of the parties to the Grand Coalition government to be altered beyond recognition—an alteration in which the succession debates particularly within Central are likely to be most significant.

And that is our political settlement — amoral, unwieldy but likely to hold, if in new ways.

AGENDA ITEM FOUR: LONG TERM ISSUES

More than any other, Agenda Item Four was meant to address the root causes of the crisis through: transitional justice; constitutional reform; addressing inequality; land reform; and addressing the youth bulge.

Speaking to a Kenyan audience last year, Ugandan Professor Mahmood Mamdani of Columbia University noted that: ‘violence is not its own explanation.’ What he meant was that all the investigations into who committed violence and how did not necessarily always adequately account for why they did so. We have recognised that fact through the passing of the bill to establish (finally!) a Truth, Justice and Reconciliation Commission as well as the passing of bills to (finally!) conclude our constitutional reform process. The acts are not without fault—negotiations on the same by the House were inevitably clouded by the tensions and self-interests referred to above.

But, however flawed the processes thus unrolled might be, what we need to focus on now is the substantive content brought to bear on the same. The devil is in the detail—resolving historical injustices will mean both retributive and restorative justice processes for survivors, victims and their families. Constitutional reform that matters has to address, at a minimum, Presidential powers, the separation of powers, checks and balances and our electoral system — as well as, importantly, ensuring constitutional enhancement of equality rights — for an expanded list of protected grounds, notable among which must be gender/sex and ethnicity.

So far, all we have done with respect to equality is pass the utterly inadequate Ethnic and Race Relations Act — which not only failed to define discrimination (direct and systemic) but failed to elaborate the ways in which the one protected ground it addressed (ethnicity/race) interplays with other protected grounds (through compounded/multiple discrimination). And failed too to propose the range of measures that can and must be taken when discrimination is found to exist. We do not have problems of an ethnic nature solely because we are ignorant and uneducated about ethnicity — for which public education would be a sufficient response. We have problems of an ethnic nature because direct and systemic discrimination against us has occurred in the past and continues to occur — for which no remedies were proposed. Issues of equality thus need to be taken up both in the constitutional reform process, as well as in all matters relating to national planning and service delivery through the national budgeting process.

But if we are as yet unprepared for the above, we are even less prepared it seems to address land reform and the increasingly urgent issue of youth bulge—and both taking gender and women’s human rights fully into account. For example, with respect to the latter, while it is a concern that an inordinate section of our population is demographically categorised as ‘young’ and un/underemployed, it is clear that with young women still bearing primary responsibility for reproductive and community labour, the problems associated with un/underemployment are different for them as compared to young men.

Meanwhile, on the first front — land reform — the draft land policy (which does take gender and women’s human rights into account) is still apparently inexplicably stuck at the Cabinet level. There seems to be no impetus to move it forward. And too, there appears to be no action on actually beginning to map out the different levels of legitimate claim to land that will need to be taken into account and addressed before any fundamental restructuring of land ownership and tenure patterns established under colonialism can take place. Neither has there been any evidence of movement to resuscitate and move on supra-shifts in land ownership and tenure occasioned by corruption—as well spelt out in various reports easily available to us, such as that of the Ndungu Commission.

As we have seen, land is a time bomb — not waiting to happen (as it has already happened), but waiting to re-explode.

We cannot take another explosion. This second year of the Grand Coalition government needs to protect us from the same. And we need to all ensure that it does.

* L. Muthoni Wanyeki is the Executive Director of the Kenya Human Rights Commission (KHRC) * Please send comments to [email protected] or comment online at http://www.pambazuka.org/

* A shorter version of this article appeared in the East African

Thinking about Nelson Mandela’s birthday, what comes to mind is how I felt—how the world felt—watching his release over a decade ago. Watching him walk down the road, hand in hand with his now ex-wife, Winnie Mandela. Watching South Africa prepare for its first full elections in 1994. Watching him assume the Presidency. Watching him re-marry, this time Graca Machel, the former wife of his slain Mozambiquan comrade, Samora Machel.

There were so many moments that made me cry. Cry that they, we, Africa, the world had done it. South Africa was free. We could all therefore aspire to freedom—believing, knowing it could be achieved, in our lifetime. And Mandela had finally found personal as well as political peace. Meaning that we could all find love, even in the setting of our lives—with whole histories, legacies behind us.

Hope was what Mandela symbolised then. He represented the very best of us. And he symbolised our hope that Africa as a whole could—and would—realise the best of itself.

Today, however, not so many years later, I wonder what has become of those aspirations—for freedom, for love, for hope in the best of us. The electoral process—so important in 1994 for South Africa and the rest of us as we moved back towards political pluralism—is now a travesty. From Ethiopia to Uganda to Nigeria and, most recently and tragically, to Kenya and Zimbabwe, it is clear that even those most basic of human rights were not won definitively in the 1990s. And South Africa has now well lost the moral high ground that it had assumed in 1994.

So the question that comes to mind now, thinking of Mandela’s birthday, is how he can use his own moral authority to help us aspire again. He is just one individual—but he’s an individual who transformed himself from being the founding member of the Africa National Congress (ANC)’ armed wing, Umkhonto we Sizwe (MK), to being one of the most beloved personages on this planet. His own beliefs and ideals did not change. But his tactics necessarily did, even though MK’s existence arguably helped force the settlement reached. And the world’s perceptions of him changed as well. How do other individuals respond to that transformation? Other Africans in positions of leadership? Us all? How do we maintain our beliefs and ideals, while changing tactics when necessary and forcing change in perceptions of us?

This is the challenge that we all face, as Africans wanting to aspire again in freedom, love, hope. As Africans wanting to believe it is all possible—and in our lifetime.

Happy birthday Nelson Mandela. Thank you for existing. Thank you for making your own existence worthwhile. Thank you for becoming the reminder, the symbol that you have.

*L. Muthoni Wanyeki, is the executive director of the Kenya Human Rights Commission.

* Please send comments to or comment online at http://www.pambazuka.org

L. Muthoni Wanyeki, executive director of the Kenya Human Rights Commission, recently spoke to AllAfrica.com about a wide range of aspects of the crisis that erupted over Kenya’s disputed presidential election.

On the elections:

The position of my organization, and the coalition we've been working in, has been that the anomalies, malpractices, and illegalities witnessed with respect to the counting and tallying of the presidential vote were substantial enough to alter the outcomes... You have to understand that Kibaki may not be in office legitimately or legally.

On forms of violence:

It’s important to understand this violence not in the way it’s being presented, as though it's... people resorting to deeply-felt innate feelings of tribal hatred and resentment. Actually, the violence has taken very specific forms, the worst of which are highly organized. We've said consistently that we initially saw three, then four forms of violence, the first two of which have mutated and intensified.

The first form was disorganized, spontaneous protest at the announcement of the result – or the supposed result – across the country. That has largely died off or been suppressed. The second form was organized militia activity, beginning in the Rift Valley but then spreading out from Central [Province] in particular. In the Rift it took the form of deaths, destruction of property, displacement of people and so on, but has been responded to by the reactivation of existing militia organizations – like Mungiki – that are now moving out from Central trying to recapture territory that they believe has been lost or ceded, given the displacements that have happened.

Mungiki is an organized militia organization. It began really as a sort of genuine social movement out of internally displaced people from the politically-instigated clashes in the early 1990s. It was very quickly co-opted however by [former President Daniel arap] Moi, by different elements within the regime, to act during times of elections and political organizing. The problem is what you do with a group that's armed, that's trained, once you no longer need them for political purposes. They then took on the form of a protection racquet or mafia within low-income areas of Nairobi and other cities, basically providing protection to citizens and business people within these areas for a fee.

The third form of violence that we saw was the really extraordinary use of force... in trying to contain the protests... largely in Nyanza Province, where most of the deaths that have occurred have been through extra-judicial killings. There's been a very uneven pattern of police response [to protest]... a very heavy deployment around Nairobi in Uhuru Park, where they were trying to prevent ODM [the opposition Orange Democratic Movement] from mobilizing their rallies. Very insufficient security was provided to IDPs [internally displaced persons] and... extreme [police] presence in the stronghold of ODM.
The fourth form of violence is more recent and it has to do with a kind of communal response to the return of IDPs - people hearing their stories, then getting incensed and organizing revenge or retributive attacks on minority communities in the Central and Nairobi areas.

On economic sabotage:

Now the militia that was active in the Rift seems to really have shifted its activity to economic sabotage. They’ve blown up bridges that would connect the transit trade from the [coast] into Uganda; they've blocked the border. They’re allowing people but not goods, services, [or] oil to get through. And obviously the Rift valley is our agricultural breadbasket and the harvest has totally been lost.

Meanwhile, the militia coming out from Central to meet this group are not just carrying out revenge cleansing, they are also... as you leave ethnically homogeneous groups behind, resorting to protection activities. The Kikuyu, for instance, in Central, who have tried to harbor people from other communities, are being forced to pay protection fees for that. But [now] even if they're not harboring anyone, they are having to pay protection fees. So there's an upsurge of that kind of criminality, now outside of the low income areas where it used to be contained.

On police harassment:

With respect to the extraordinary use of force by the police, that seems to have shifted to harassment of human rights defenders, so far... intimidation more than anything else. But there's clearly cooperation between them and a higher level of organized activity or professional activity among the militia.

It’s a very complicated kind of situation, but it is for the most part organized and that's the important point to get across. Most Kenyans, left to their own devices, even though they may be upset and polarized over the election results, would not resort to hacking their neighbors to death. We’ve heard too many stories of people from across communities either providing security or trying to organizing safe passage [for those under threat] to allow us to buy into the myth that Kenyans have ended up descending into our primal ethnic selves.

There are very high levels of organized propaganda, to which people are, I think, responding out of a genuine fear and alarm, not realizing that they are playing into ideas that are being created about this myth of descent into civil war. [It] could happen, but if it did happen it wouldn't be because we descended into it of our own accord, it would be because [some forces] intended to do that.

On the international mediation of the crisis:

The mediation is extremely critical... We hold to our position about [Mwai] Kibaki being in office illegitimately and illegally, not so much at this point in time [to say] that Raila [Odinga] should come in but just... [for Kibaki] to recognize [his]... illegitimacy... and... that even were he legitimate, we have a country that is politically divided 50-50.

In terms of effective governance, in the sense of control over territory, PNU (Kibaki’s Party of National Unity] essentially controls Nairobi and Central province, ODM (Odinga’s Orange Democratic Movement] controls everything from Nairobi to the coast, including our port, and everything from Nakuru West, right up to the border. ODM also controls parliament, despite the killings of two of their parliamentarians recently.

In that kind of situation it's ridiculous to try and hold on to power at all costs. Some sort of power sharing agreement has to be reached, but not power-sharing in the sense that PNU has presented it. They have presented it as if they are legitimate, they are in charge, and if they give power-sharing it will be a matter of one or two cabinet seats. That can't work. It can't work in the sense of long-term preparations for [the] 2012 [election].

But it also can't work in terms of the economy. We all know what it was like to go through the period of 1997 to 2002 where, with the threat of the Moi succession hanging over our head, nothing happened... We went into decline.

On reforms:

What we need is an interim power-sharing transitional arrangement in which several things get done. First, obviously, electoral reform, based on what we have called for - an independent audit and investigation into the counting and tallying of the presidential vote to let the whole country see what happened and regardless of the outcome, just to lay that matter to rest except in the sense that it would inform revision of our electoral process.

Second is constitutional reform, particularly around powers of the presidency.
Third would be the beginning of real processes of addressing historical grievances and inequalities and so on.

Fourth would be resettlement and re-enfranchisement of the IDPs.

We think that all of that can happen in a maximum of two years and we need a re-run [election]... The real sticking point is the PNU accepting that there was a problem with electoral fraud. We think that everything that can be done to keep PNU at the table should be done and that would include continually questioning their legitimacy and legality.

On threats to human rights defenders:

Several things have happened. First we received information from four different sources within the police and within intelligence that all of us involved in this coalition that is stressing electoral truth as well as justice around violence were targeted in one way or another and particularly Maina Kiai [chairman of the Kenya National Commission on Human Rights]... We all took precautions... Whatever is done will obviously be made to look like ordinary criminality so [we are] careful driving alone, being alone, especially at night, [and with] security in our houses, that sort of thing.

Secondly, when we were releasing our electoral findings, which was meant to be to a closed media briefing... the meeting kept getting flooded by all these young men [from the Kibaki camp], which was a bit intimidating because we did not know what would happen. We alerted hotel security, but then hotel security as it turned out had already been alerted by the police. The place was surrounded by police – it was just an intimidation effort basically. There were people supposedly from the IDP camps protesting outside, you know, calling Maina Kiai, “msaliti, msaliti,” which means “traitor, traitor” because he happens to be Kikuyu, the same ethnicity as the president. The hotel we were at is only a few meters from Uhuru Park, where people weren't allowed to demonstrate but [here] other people clearly were.

Then when we were leaving, there was this heavy [police] presence checking every car supposedly for guns. It was ridiculous, as if any of us would carry arms. Then some of us felt we had been followed. So that was alarming but again it seemed to be an overt kind of intimidation rather than anything else.
[Thirdly] a list was released of supposedly Kikuyu traitors that included many of us, saying we should be targeted in the way Mau Mau targeted traitors during the independence struggle. The implication was that we have not been concerned about the violence – about our own people bearing the brunt of the initial militia attacks – and we are targeting this man who is supposedly our president and representative of our interests. That was scary because we were named and these groups operate outside the law. So that was probably the most disturbing thing.

[Most recently] somebody, purportedly from the General Services Unit, which is a paramilitary unit used for riot control, called the office, asking for a list of names of everyone who had ever provided training for the police and the GSU – supposedly to give us back-paid benefits. Of course the deputy director refused to give the list, and said if they wanted the list they could check their own visitors’ book. They insisted, referred him to someone who was supposedly higher up, and he still refused. Ten minutes later a policeman in uniform on a motorbike was at the office to collect the list.

None of the other organizations that provide human rights training to the police force had this request made of them. Also, in Kenya, the only people who use motorbikes are the traffic police and the presidential escort, so we actually believe this wasn't from the GSU, it was from presidential security somehow.
That is very alarming because in situations like this when security services are polarized, you don't know who is commanding what and what is coming through what kind of controls. Our belief is that NCIS, the intelligence service, knows exactly what we're doing. There is nothing illegal or threatening or seditious about what we're doing. It's what we always do. But it's doubtful whether NCIS's intelligence is being used to inform decisions that are being taken around a situation that is so highly polarized.

On what concerned outsiders can do:

Raise questions with your own governments about non-recognition of the Kibaki government,  about travel bans for people, particularly on the PNU side, about asset freezes, on both sides but particularly on the PNU side, mainly to keep people at the table. People have to realize this is serious, it's not going to die away, and for us this mediation has to work.

Also make it very clear to protagonists within the state, not just in the political parties but in relevant ministries, that the protection of people is critical: from IDPs to human rights monitors on the ground, to leadership of the human rights movement and of the media. You can't have people being exterminated or intimidated just because they are doing their work in a legal fashion.

*L. Muthoni Wanyeki, is the executive director of the Kenya Human Rights Commission. This interview was conducted by AllAfrica.com and first appeared at:

* Please send comments to [email protected] or comment online at http://www.pambazuka.org/

http://www.pambazuka.org/images/authors/Lynne_Muthoni_Wanyeki.jpgA survey by the African Centre for Open Governance finds that corruption is the number one issue in the forthcoming Kenyan elections.

The people have spoken. And, unsurprisingly, what they have said is diametrically opposed to what their leaders have been saying on their behalf.

What am I talking about? Last week, the African Centre for Open Governance launched a survey it had commissioned from the opinion polling company, Infotrak, into citizens’ views about corruption, the electoral process and transitional justice.

The findings? For no less than 89 per cent of those with voters’ cards polled across the country, corruption was the foremost electoral issue. Disaggregated by age, no less than 94 per cent of 18-24 year olds — the largest voting bloc — ranked corruption as their priority concern. And even a majority of those above 55 — 56 per cent — did the same.

Disillusionment with efforts of what remains of the National Rainbow Coalition was high, with no less than 70 per cent saying they did not feel the government of President Mwai Kibaki had done enough to address corruption. Granted, awareness of the details of those efforts was low. Only 13 per cent, for instance, were aware of the National Anti-Corruption Committee headed by Mutava Musyimi. This, of course, is somewhat ironic, given that the NACC is tasked with creating public awareness about corruption. But low levels of awareness aside, citizens were quite clear about why they gave Kibaki’s government a failing grade — pointing to the fact that the highest office holders accused of corruption have either remained in office or been re-appointed to the same. No less than 92 per cent said that they want an end to ‘sacred cows’— only eight per cent said that they were concerned about the conflict that going after the ‘sacred cows’ might create.

Citizens, then, gave their thoughts on past and present “grand corruption” — listing the cases of Goldenberg, the Kroll report, the “Artur brothers,” Anglo-Leasing and sugar imports. They were unhesitant about what they want done. No less than 81 per cent want those implicated and found guilty to be jailed, with 72 per cent demanding that they be forever barred from holding public office again. And no less than 77 per cent want any properties acquired with the proceeds of corruption confiscated. They were equally clear about what they want done with recovered funds and property — invested back into public services. Only a paltry five per cent said they would be satisfied with apologies.

What this shows, as Gladwell Otieno, head of AfriCOG, pointed out during the survey’s launch, is that all presidential candidates and other aspirants should know that there exists among Kenyans “a bedrock of support for firm action” on past and present grand corruption. What the survey’s findings should tell all three is that wishy-washiness — and a flat-out refusal — to act on past and present grand corruption will be their downfall. Especially because the findings of the survey held even when disaggregated to confirm that voters already committed to a certain presidential candidate felt the same way.

As for the electoral process in general, citizens were equally clear — no less than 93 per cent of citizens polled said they would not vote for a candidate alleged or known to be corrupt. And, even though only 51 per cent said they would not accept campaign bribes — named by them as including money, food and drink, clothes and, interestingly, jobs and title deeds — 80 per cent of the same said doing so would have no influence at all on their voting. As Maina Kiai, head of the Kenya National Human Rights Commission said during the launch, this finding confirms that “bribes do not work.” And as Mwalimu Mati, head of the Media Analysis and Research Group, added, the survey’s findings are no less than a ‘wake up call’ for all aspirants who have been warning us that the ‘skies will fall’ should past and present grand corruption be dealt with. We want our money back.

This article originally appeared in the East African Standard on November 5th.

*L. Muthoni Wanyeki is the Executive Director of the Kenya Human Rights Commission (KHRC)

* Please send comments to or comment online at www.pambazuka.org

This paper attempts to re-visit the history of African unity and highlight the reasons for the current impetus toward union among Africa’s leadership; explore the implications of the union on Africa’s current inter-governmental organisation, the AU; outline challenges to the union project and set out conditions for its success.

The upcoming mid-year African Union (AU) summit of heads of state and government has as its primary agenda a ‘Grand Debate on the Union Government’. The ideological differences present in the first three decades of Africa’s political independence seem to have been rendered irrelevant due to the current ascendancy of neoliberalism as the only valid ideological basis for economic organisation both within national political-economies as well as globally. But new political distinctions have emerged - in part due to the emergence of the so-called ‘new breed’ of African leaders following the end of apartheid in South Africa and the movements towards political pluralism elsewhere. Such leaders have posited themselves as both able and willing to speak and act on behalf of the rest of Africa - Africa presented as being determined to re-birth itself as encapsulated in the concept of the ‘African renaissance’. Similarly, economic distinctions are now also clear - in part as a result of the economic directions initially pursued post-independence, in part due to variations in both the presence and utilisation of mineral and other natural resources and in part due to governance.

The result is that certain African states are, in effect, positioned as metropoles for the other African peripheries. Such African states, worried about the potential impact of union on their national political-economies, are hesitant about the potential for immediate union. Other African states, seeing nothing but advantages from a union, argue that, given Africa’s diversity, there will never be an ideal time and now is as good a time as any. Others are simply sceptical.

The scepticism is not unwarranted? Has the time come for union? Is Africa’s leadership genuinely ready for what union would entail?

The ‘Grand Debate’ in (fittingly) Accra this June seems set to answer these questions. While idea of the ‘Grand Debate’ may seem incredible given the lack of popular awareness of (let alone informed debates around) the process leading up to it, its potential impact on Africa and African peoples’ is not in question. But the process leading up to it is informed by motivations and rationales that are not as incredible. In fact, an exploration of these motivations and rationales reveal the process leading up to the ‘Grand Debate’ as somewhat inevitable - informed both by history and by the current context of Africa within the global political economy.

This paper thus attempts to re-visit that history and highlight the reasons for the current impetus toward union among Africa’s leadership; explore the implications of the union on Africa’s current intergovernmental organisation, the AU; outline challenges to the union project and set out conditions for its success. In so doing, the paper sets out and critically assesses the study which will inform ‘the Grand Debate,’ and drawing from debates within African civil society (including the African women’s movement) on the experience of the AU to date. It also assesses the financial proposals made by the study from the perspective of theory relating to processes of integration.

It concludes by noting that the time frame given in the study is too short. The low level of public awareness about the study, its recommendations and the upcoming ‘Grand Debate’ are bound to militate against implementation of the recommendations - even if the idea of pan-Africanism is an idea that has long been aspired to. The recommendations will be seen as imposed on African populations from the top-down, rather than arising from a consultative process which all Africans buy into and support. In addition, the financial proposals in particular cannot be achieved (as the study itself notes) within the nine years. Technical questions aside, they hinge on critical pre-conditions for success such as, at best, African citizenship (including African women’s autonomous citizenship rights) or, at least, freedom of movement across the continent - the achievement of either which will be difficult to implement given the varied economic performance of individual African states as well as the persistence of internal conflicts across the region.

This is not, however, to suggest that the study’s recommendations are unfeasible. True, the experience of the AU to date paints a picture of somewhat inconsistent and patchy progress that is more incipient than felt on the ground. But it also points to a significant shift towards meaningful collective action that bodes well for further intensification of the regional integration agenda.

But for the study’s recommendations to be achieved and the clarion call ‘Africa Unite’ to be realised, political will will need to be built up at the highest and lowest levels. Enhanced delivery by the AU as currently constituted is critical. While working towards an aspirational framework within a more reasonable timeframe, the focus should now be on resolving the gap between the AU’s normative framework and institutional and programmatic or project delivery.

* This paper was commissioned by, and reproduced here with the kind permission of, the Africa Governance Monitoring and Advocacy Project (AfriMAP), a project of the Open Society Institute (OSI).

* L. Muthoni Wanyeki is a political scientist based in Nairobi, Kenya.

* Please send comments to or comment online at www.pambazuka.org

"Community radio is participatory radio with a social development purpose"
The World Association of Community Broadcasters (AMARC)-Africa

A colleague of mine told me an interesting story recently. She works with a project that has to do with the establishment of three rural community radio stations--one in Mang'elete, Kenya, one in Terrat, Tanzania and one in Kagadi, Uganda. The aim of the project was to enable the communities involved to analyse and debate development issues from their own perspectives, thus providing a linkage between local-level experiences of development on the one hand and the national-, regional- and international-level policies that shape those experiences. Beyond production of content, all three communities also own and manage their stations.

The Kenyan station, Mang'elete Community Radio, was the last to go on-air due to the protracted wrangling to get a licence and a frequency for the station. Under the former government, little movement was initially possible. The former ruling party was clear about not wanting independent electronic media to go beyond the capital city.

The regulator, in a more open and reasoned fashion, had concerns about the definitions of a 'community,' definitions of a 'community radio station' and so on. The preconceptions were many. That, in Kenya, a 'community' could only be understood to be an 'ethnic' community. That no 'community' at the local level, however well-organised and prepared to run a station, would be able to withstand the political (disguised as ethnic) pressures that would inevitably be brought to bear on it to slant its coverage to the advantage of one political faction or party over another. And so on.

Finally, after much negotiation and some political intervention, the station got its licence and frequency. The story my colleague told me has to do with what happened since. Once the station went on-air, its value to those politically-inclined sharply rose. It started raising money through community service announcements. The women's group which had initiated it found themselves quickly shunted aside as men sought to gain control of management and programming. The men quickly factionalised. The coordinator was accused of nepotism and corruption. In short, it was a mess.

My colleague, whose role was merely to facilitate fundraising, training and technical support for the three community radio stations was forced to step in, together with colleagues from the other two stations in Tanzania and Uganda. Attempts at reconciliation failed. She finally, with the help of the local provincial administration, ordered the station off-air to enable sanity to prevail again. Finally, two months later, all has been resolved. Women are back in charge of the management committee, with a clearer sense of how to manage personal and political interests. A temporary caretaker has been found to run the station pending conclusion of inquiries into the financial allegations. And valuable lessons have, hopefully, been learnt about the difficulties of 'participation.'

I thought about her story earlier this year, reading reports on the elaboration and implementation of projects under Kenya's new Constituency Development Funds (granted to all constituencies for spending on development under the constituency's representative to parliament). When she had first called me, at the height of the crisis, I was tempted to throw the baby out with the bath water. That is, to take the story as yet another example of why 'participation' does not work. Sad, but true--it is so easy to become cynical and jaded. But another colleague cautioned both of us, reminding us that people's experiences of genuine control--at any level--are still too fragile, too new to dismiss what first, inevitably, happens when their control is genuinely facilitated.

So perhaps it is unsurprising then that since the reports on the CDF projects were done, much critique has arisen. The Law Society of Kenya pointed to their unconstitutional nature given that they are monitored by parliament, whose members serve as the chairs of the CDF committees. The reports themselves pointed to problems in the make-up of some CDF committees--as usual, accusations of nepotism abounded. The reports also showed the disparity of approaches to project prioritisation. The more rational committees opted for projects that already existed but had been stalled or for projects determined by constituency-wide consultations on project priorities. The less rational committees opted for projects in the personal and political interests of the committees' chairs.

None of these are insignificant problems and they do have to be addressed. Particularly if we understand the CDF projects to be a short-term, interim step towards decentralisation and devolution. Constitutional or not (and they should be brought in line with constitutional principles), the CDF projects are an experiment. As is Mang'elete Community Radio. Experiments from which we all should take pointers as to how to most effectively involve our 'communities' not only in a determination of our own development interests, but in the management of those interests. That implies that our parliamentarians should stop seeing them as their own personal property but rather as their opportunity to enable informed and genuinely bottom-up 'participation.'

Is that too tall an order?

* L. Muthoni Wanyeki is the Executive Director of the African Women's Development and Communication Network (FEMNET)

Please send comments to