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.

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