By Maina Kiai

Tuesday, August 31, 2010

We are not out of the woods yet, despite the new constitution

There is lots of hype and excitement about the new constitution, as there should be. But while this is a huge step forward, we must not get carried away and forget that the other issues of importance, that basically led us to crisis, conflict and the near breakup of Kenya, are far from being resolved. These issues—impunity, bad leadership and lack of accountability--must be resolved before we can celebrate fully, totally and unreservedly. We must not relent, even as we welcome the new constitution.

For impunity, many of us are watching with cautious anticipation as the International Criminal Court (ICC), investigates and hopefully prosecutes those bearing the most responsibility for crimes against humanity since 2006. From all the analyses of the conflict, there were three basic theatres of violence that need to be accounted for. These were

(i) the massive police killings and rapes in Kisumu, Kakamega, Nairobi and Eldoret that were clearly planned with the aim of killing and causing fear and intimidation. The police raped hundreds of women and shot hundreds of people in the back which is a crime against humanity and not enforcement of law and order;

(ii) the killings in Naivasha and Nakuru that started as early as December 30th 2007 against Luo, Luhya and Kalenjin by Kikuyu, and which intensified towards the end of January 2008 in ways that Justice Waki described as the most brutal and inhuman killings in the crisis; and

(iii) the killings in Eldoret of Kikuyu peasants by Kalenjin warriors that started December 30th 2007 and included the gruesome, Rwanda-like burning of Kiambaa Church in which innocent women and children had sought refuge.

If anyone of these theatres of conflict is not properly investigated and prosecuted, the ICC will lose credibility; and Kenya will be the worse off. The ICC has stated that Kenya is a case study in prevention of more crimes against humanity, but this will fail if any of these general episodes are not accounted for. ICC must do its job well and credibly or risk more violence in future, notwithstanding the new constitution. Our job, as Kenyans, is to monitor ICC closely, co-operate where we can, providing links and information if we have it. But we must maintain pressure on ICC given the potential impact of failure or incompetence.

Impunity and lack of accountability also needs to be addressed via the Truth, Justice and Reconciliation Commission, which is unfortunately now turning into a bigger farce than could have been anticipated! How a potential witness—in a negative way--can Chair the TJRC beats comprehension! How someone who is supposed to lead reconciliation can be so arrogantly obstinate boggles the mind. If Bethuel Kiplagat does not get what conflict of interest is, his competence and integrity as Chair are marred ab initio. Worse, he has now gone out and hired other potential witnesses as staff for the TJRC! Which means that these survivors—and a large majority have been on the margins of society precisely because of the violations they suffered--who are now staff will not be testifying at the TJRC as that would be another conflict of interest! What better way to destroy an institution, and weaken it before it starts than this?

Should we then just shrug our shoulders and give up? Absolutely not! If anything, Kenya now needs a return to the tactics of the 1990s when civil society—in rejecting Moi’s cynical attempts at controlling the constitutional reform process—started their own parallel process (Ufungamano Initiative) that eventually forced Moi to cease control. It is time for civil society to start thinking of credible alternative initiatives. This is not rocket science and there are enough people of goodwill, competence and wherewithal to get this right and shame the Kiplagat farce out of this space before it is too late for Kenya.

The greatest regret about the Kiplagat-led farce (ably assisted by Mutula Kilonzo who continues to extend total support for him from what I gather), is that we may lose a chance to lustrate politicians and public officials who could be implicated in a serious TJRC. If there is one thing that Truth Commissions are good for, it is their capacity to ban people from holding public or political office as punishment for committing crimes or not reporting them. And that is something badly needs.

Reforming leadership is certainly more complex but it’s also doable. There can be no doubt that the years of bad, selfish, anti-people leadership—from colonial times to Kenyatta, Moi and Kibaki—was as much responsible for our crisis as anything else. The new constitution provides us with tools to hold leaders accountable and for us, as ordinary Kenyans, to use the space to nurture and demand a new form of leadership, But we also must accept that we—ordinary Kenyans—share some of the blame here. It is us who have taught our politicians that we have a price. It is us who have succumbed to the idea that we must “speak with one voice ethnically,” though we know that this advantages the powerful greedy politicians rather than the poor among us no matter our ethnicity. It is us who have made politicians little tin gods from whom we worship and beg crumbs from.

This, we have to change. I am not certain that 2012 will be provide a sea change in terms of leadership but we need to start with that as our benchmark: This must be the year that we can begin identifying pro-people leadership with integrity and focusing on how to get them ready for 2017. And then from 2017, if we have the leadership issue sorted out, together with the impunity and lack of accountability issues; then we can say that we have made irreversible progress to peace, stability, democracy and development.

Sunday, August 8, 2010

The Constitution is about Kenyans not Politicians

I am relieved that after so many years, we finally have a new Constitution that expresses our aspirations and hopes as a modern Kenyan state. I am resisting euphoria, even in my happiness and relief. I have seen--much too closely--similar moments of hope and joy in our history that were dashed quickly by the political class.

For me, the passage of this constitution is personal. On setting up the NGO Kenya Human Rights Commission in 1992, it quickly became obvious that the human rights violations we were denouncing and challenging had a basis in a constitution that was intrinsically repressive. There was little chance of change and respect for ordinary Kenyans within that framework that allowed the President to do whatever he wanted, whenever he wanted. As our 1993 report “Independence without Freedom” asserted, Kenya was basically a colonial state, with laws, structures and attitudes that were exactly the same as those that governed the country from 1920 to 1963. The only thing that had changed was the color of the skin of those doing the repression and corruption, but it was just the same. To enjoy human rights, it was necessary to change the structure, reasoning and functions of the state. And that demanded constitutional change.

So in 1994 through to 1995, KHRC initiated a process that culminated in the publication of The Proposal for a Model Constitution, a joint effort with the Law Society of Kenya and the International Commission of Jurists (Kenya Section.) The objective was to show Kenyans and especially the political class that it was not rocket science to make a new idealistic and modern constitution. The other key objective was to provide a basis for citizen education and awareness by providing an example of “what could be.” From there, the Citizens Coalition for Constitutional Change (4Cs) took off, and from there, the National Convention Executive Committee (NCEC) was borne. By 1997, “Katiba” was a common word in Kenya, despite insults from Daniel Moi who would often ask if Katiba could be eaten. But we persisted and the rest as they say is history.

It has been a long road. A painful road. But finally we can say it was worth it. And it’s always been about putting Kenyans at the center of the state and the country, unlike the outgoing constitution that places the Presidency at the center. It is a struggle that was initiated and driven by non-politician Kenyans, in the main. It is a process that is about empowering ordinary Kenyans to be the masters, not servants of politicians. It is about providing the space and tools for ordinary Kenyans to challenge power and to speak truth to power. These tasks continue even after passing the constitution.

Along the way, and especially after politicians on both sides took over the initiative with the IPPG reforms, ordinary Kenyans have not been at the center of this struggle. There are lots of reasons for this, but also lots of lessons for us that we need to learn and internalize as we get to the implementation stage of the new Constitution. Yash Ghai did a great job to return Kenyans to the center, and the Committee of Experts must be commended for taking its role as custodians of the public interest seriously, especially in the face of serious opposition and challenges from the political class.

So as we celebrate, as we should, we also need to remember. We must pay homage to those who lost their lives in the struggles starting as far back as 1966, challenging power. We pay our respects to those who were crippled in protests in 1990 through to 1998. And we make special mention of people like the late Chris Mulei of the ICK-Kenya who was pivotal as far back as the drafting of the Proposal for a Model Constitution through to the 4Cs and NCEC. This is his victory as much as anyone else's.

And we need to focus now. At the top-down levels that require people of integrity, competence and character in the various organs, for we have learned that we can’t have reform without reformers. And also at the bottom up levels that seek to empower more ordinary Kenyans to challenge their leaders and hold them accountable.

This second bottom up task is urgent. For whatever reasons, the patterns of this vote largely reflected, yet again, what we have seen since 1992: Voters aligning around their ethnic political leadership. It could be that many voters actually read the draft and made a decision, but it is rather suspicious that there were so few votes in Nyanza that went against Raila Odinga’s choice. Or in Western, against Musalia Mudavadi; or Kalenjin, against Daniel Moi and William Ruto; or Kikuyu against Mwai Kibaki. Of course it could be that the leaders simply read the mood in “their strongholds” and campaigned on those lines, but somehow I am not so sure especially as there was a clear and loud shift among Kikuyu voters once Kibaki came out strongly.
So while I am happy the draft was approved by voters (and kudos to the IIEC for a job really well done), I am painfully aware that the journey has just started and we must not lower our guard. Ever again. The time to roll up our sleeves is now!