By Maina Kiai

Tuesday, February 8, 2011


I can’t say I know much about Tunisia beyond what the international press tells us, but by gosh, people power always moves me! And hurrah for the Tunisians! My instincts are clear: a president in power for 23 years, who “wins” elections by between 89-99% and whose family is beyond accountability and have the gall to ostentatiously parade their wealth, must mean there is a problem, and a big one too. I go for the small guy, the one who challenges power and speaks truth to it…and there is no better way to speak truth to power than what Tunisians are doing!

So let’s hear it for Mohamed Bouazizi, the 26 year old university graduate who inadvertently started the chain of events that have led to the ouster of one of Africa’s Big Men. Mohammed could not get a job despite his university education, so he started selling fruits and vegetables on the streets. In Kenyan terms, he was a jua kali hawker. But the police said he had no license so they destroyed his goods and in a fit of desperation, he set himself on fire. I am certain that he had no idea that his actions would lead to the fall of the dictator Ben Ali. He had no organization, no money, and no group of tribal supporters. He was just plain tired of trying to survive and all the hardships placed in his path.

And after that suicide, another followed. Anger in society grew, for the unspoken contract between Ben Ali and the people—that in exchange for his power and autocracy there was to be social and economic development--was over. So facing guns, tear gas, rubber bullets and water canyons, the people started flowing out onto the streets in protest. And the state, as it often does, over reacted, aiming to beat the people into submission. Between 23 and 60 people were killed but that only increased the anger and the courage. Ben Ali tried to make concessions but it was too little, too late…and the rest is history. Of course it’s not over and we will watch Tunisia with lots of interest over the next few years, for turning back the clock on this heroism is still possible, as we learnt in Kenya with NARC in 2003.

But for us, some lessons. We have to keep working the courage. We have to keep working the anger. We have to call the political elite for what they are: predators, parasites and pretenders. They are not leaders for leaders respect and like their country and their people; they do not just take take take…
We have lots of work to do in Kenya but sometimes the political elite makes it a little easier for us, as they are doing now with the idea that one can justify crimes against humanity; that our taxes should pay for the private defenses of suspected criminals for such chilling crimes; that they are more special than we are, those that keep them there…

So let’s gear up and work…if it can be done in Tunisia then we can do it too in Kenya. And for us the target is not just one or two families at the top: we should aim for all the 222 MPs and their acolytes, remembering who and what they are….

Now that is an interesting start to 2011!!!

Tuesday, January 4, 2011



The Ocampo list is finally out and as expected, all manner of reactions are coming out, many of them quite frightening. And many of them are totally wrong. Predictably the attempts to turn this from individual responsibility to alleged community persecution are in high gear. This is a constant for the Kenyan political elite who enjoy the benefits of power, status and privilege as individuals but as soon as trouble starts, they try to turn it to a community issue…That is something that we still have to keep fighting.
More insidious is the idea that non-politicization by the ICC must mean that all ethnic groups must be represented on the list without regard to the evidence of criminality, yet we all accept that the main theatres for violence were in Nairobi, Eldoret, Kisumu, Nakuru and Naivasha. Now, the suspects are all innocent until proven guilty, but it’s amazing how Kenyans are so quick to take their political perspectives to international institutions. We opted for the ICC precisely because we did not trust that our institutions would be above political machinations and manipulations, and now because some of us are unhappy we are quick to try to pin the same machinations on an international process that no Kenyan has much influence over!
For me, one of the worst elements coming out is the idea that Mass Action is a crime. It is not, it can never be. In fact, it is a right, guaranteed by our new constitution, and also by international law. Mass action is NOT a call to violence. Mass action is not saying “destroy and demolish”. Mass action is simply peaceful protest. I bet that had this been allowed in 2007/8, we would have had less violence than we eventually did. It is a vent – a legitimate vent - for people to peacefully express their views and objections.
Yes, it can turn violent, and it does so in many cases, not just in Kenya but across the world. And when it does, the State must restore security and safety in a manner that is appropriate. Not by shooting people in the back. Not by suggesting that everyone out in the streets is a criminal. Not by raping women indiscriminately.
We need to protect and defend the idea of Mass Action and do so fiercely and jealously. Kenya’s move from total autocracy and dictatorship owes much to Mass Action - from 1990 when Jaramogi Odinga, Ken Matiba and Charles Rubia called for Mass Action to protest the one party state; to the mass action of the mothers of political prisoners in 1992; to the mass action led by Kenya Human Rights Commission from 1995 against extra judicial executions and against the state sponsored violence in the Rift Valley and Bungoma; to the mass action in 1997 on the need for a new constitution. Mass action has been a tool, a non-violent option, to spur change.
Now it is being called a crime by those who fear being held accountable for their own REAL crimes. If society cannot have a vent for peaceful grievances, then the likelihood of resorting to violence rises. So we must not succumb to purely political propaganda that wants to equate calls for mass action with criminality.
Of course if those calling for mass action also planned violence and destruction and rapes and displacement, then they should be held accountable. Produce evidence, take it to court. But then they must be held accountable for planning and implementing the actual crimes, not for calling for Mass Action.
My worry is that if we are not careful – if we spend are led by political basis instead of logic and wisdom - we will cut off our noses to spite our face, as the saying goes. That is, when this ICC issue is over and we next need to protest the activities of our leaders (I am certain that the day will come, maybe sooner rather than later) calls for Mass Action will be treated as crime…But how else can a society force arrogant, deaf and greedy leaders to listen up, if not with peaceful protest?

Monday, November 29, 2010


The last few weeks have shown, yet again, the total contempt that “our leaders” have for us Kenyans. They just can’t help themselves, and even when they seem to be on a roll on serious issues, their greed and disdain for us shines through…

Consider the following: First our MPs, who had been making all sorts of seemingly positive noises on corruption and the need for accountability and probity in public management, came up with the idea that this parliament must run till December 2012, no matter what the new constitution says about elections in August! Their rationale being they need the time to do what they are required to do in the new constitution! Of course they did not mention the prospect of working 5 day weeks like the rest of us, cutting out their long “summer holidays” or ensuring there is quorum in parliament as possible solutions to the workload they have. And for good measure, they then brought out their own legal guns—including that master of double-speak Mutula Kilonzo—to interpret that the clear and obvious August date for elections does not really apply to them…!

They think that we can’t see through their games? They think we are too foolish to see that this is all about the money? It’s all about the Ksh. 5-6 million that they will lose once elections are held in August 2012, given their outrageous salaries of about Ksh. 1 million a month. And they know that with the high rate of non-return, many of them will never see this sort of money in their lives again. So they look us in the eye, assume we are idiots and churn out these lies to our faces, not batting an eyelid! Wow!

At the same time they make a power grab to take the role of the Senate, the Governors, and the County governments, and keep it to themselves! Money and Power! These are the two defining issues – nothing to do with a party line! On these two issues they are united and clear that they can continue to fool us! So they try…

Then there is William Ruto. He takes himself to The Hague in a blaze of publicity—thus confirming that he is a person of interest to the ICC—and comes back with a pack of lies and spin and diversionary tactics. He can’t provide a straight answer even to the simple question whether he met Luis Moreno Ocampo. (He did not). He prefers to talk in parables, and give the false impression that he did. Ruto may be powerful, but even he can’t be in London and The Hague at the same time!
Ruto launches into an attack first on the Waki Commission and when that does not seem to fly, he shifts attack to the Kenya National Commission on Human Rights. Accusations made are neither here nor there. His matter is with the International Criminal Court now. So no matter what the KNCHR did or did not do, he must address his issues to the ICC. He is trying to divert attention and play politics with a legal issue. He assumes that we will swallow the spin and lies - from meeting Ocampo, to impugning the credibility of the ICC. Yet he, like any one of us - including the Waki Commission, KNCHR, or you and I - can make information available to the ICC. Which is what he did when he went there.

The ICC’s obligation is to conduct its own investigation using what is in the public domain, and what is not. So they will interrogate and examine the information received from Waki and KNCHR as much as they will interrogate information from Ruto. They’ll decide, as experts without political interests in Kenya, what to use and what not to use.
Bringing Kenyans into his personal legal issues is insulting, and assumes that we are fools who will swallow the publicity stunts and believe him. But please, stay real: Ruto is the one who can’t answer if he met Ocampo or not; the one whose position on the referendum changed with each week. His reasons for opposing the constitution changed with the headline of the day! The “witnesses” he has paraded did not even testify to the KNCHR or Waki!

There are plenty of such ‘leaders’ from Old Kenya. Like the military - who when questioned about possible issues of financial impropriety quickly rush to declare that national security is at risk! We have heard this before haven’t we? Anglo Leasing was based on so called national security! The fishing boat to be turned into a naval ship (we still waiting 6 years since they started the transformation) was national security. Yet we all know that as soon as corruption is entrenched in the military then we are really facing a security risk! How can our air force defend us with planes that can’t fly? How can we repel an invasion with trucks that don’t move? How can we protect Kenyans with a military full of cronies and “bought recruitment” rather than one that reflects the diversity, expertise and professionalism of Kenyans?

But why can they take us for granted so much? Why do we feed their egos and seem so gullible? We not challenge enough. We need to make them know that they can’t take us for a ride and its them who must change and give us respect. Are we part of the problem, because ‘our leaders’ can always hide behind “our own”? We have to ask ourselves – how guilty are we? We can’t be pawns for them – but we are if we support them if and when they make the requisite appeals to our ethnicity….
Part of our problem is our amnesia with our own history. Part of our problem—especially those of us who can access this blog—is that we don’t spend enough time working to organize and relate across ethnic groups. As individuals we are always talking about finding our Mandela or our Obama; but we can only make our Mandela or our Obama as a collective.

There is lots to do, and clearly the spirit of the new constitution has not touched our leaders yet! But has it touched you..?

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!

Monday, July 26, 2010

"Clearing the Air" in Mombasa

July 19 - 25th: We were in Mombasa showing our new film ‘Clearing the Air’. We’re working with our partner Muslims for Human Rights (MUHURI) in doing civic education. MUHURI has also been showing another InformAction documentary “The Challenge of Change”, a good background to the long struggles for change in Kenya.

How gratifying when someone came to greet me in a kiosk in Ukundu to tell me he’d seen “Challenge of Change”! And then in traffic in Mombasa (traffic is fast approaching Nairobi-jam like status!) two young men gave me the thumbs up out of the window – “thanks for the DVD Maina Kiai!”. So the DVDs really are getting around… People have told me they are particularly happy that politicians are not included in the film, and that they know the battles ahead will not diminish simply by voting in a new constitution.

And it was great to have about a thousand people attending the screening in Likoni - all so full of questions and comments in the discussion after the film that I left completely tired but inspired! Good questions on implementing the draft if it passes. Questions on what it could mean for the political class that wants to continue with ‘business as usual’... Questions on how the draft can help nationhood and link up the poor across the country to be united as poor rather than divided by tribe and religion.
“Clearing the Air” is a different sort of documentary for us, being a civic education tool, rather than the usual journalistic, human rights/social justice analysis type of films we make. But it is a direct product of the work we are doing screening films across the country and was a response to audiences in the Rift Valley and elsewhere. People were peppering us with questions on the Proposed Constitution, and repeating falsehoods, showing how quickly the lies had been created and disseminated.
It was a complex film to make since every one of us has a view—whether based on facts or not—on the Proposed draft. But we had to make it as objective as possible, and try and get as much into it as we could. So we decided to focus on the Bigger Picture; the rationale and reasons why Kenyans have been struggling for a new constitution for decades now, and put into context the role of politicians and the political class. So at its heart, the film aims at expressing the continuation of the struggles of ordinary Kenyans against the power, greed and insidiousness of our political class that has either resisted change, or used change as a slogan to capture power with no real intention of actually changing things in Kenya.

We printed thousands of copies of the film in English and Kiswahili and spread them around like leaflets, hoping to get to as many people as possible – hoping they will be played in video clubs, homes and restaurants to bring perspective to the debates. On top of this, we’ve been doing public screenings using our massive mobile screen - THE BEAST - and our Field Directors have been showing ‘Clearing the Air’ across Kenya in halls, prisons and universities. Field director Japhason Lekupe took the film as far as the shores of Lake Turkana, to the El Molo community, who said they had never been shown a film for civic education before.

What strikes me the most is the need for civil society and others to quickly engage if and when the Draft is passed to take advantage of the spaces that the draft provides. There are spaces and opportunities to use the courts once a new judiciary is passed, to ensure the implementation of the draft. There are spaces to use the Bill of Rights to organize, mobilize and empower Kenyans to make demands on leaders. And there are spaces for us to begin changing the mindset of our public officials so that if their actions are not in the interest of the public as required by the Proposed Constitution, they can be challenged in various ways.

There are also opportunities to start preparing for new alternative political leadership that can actually deliver the promise of the Proposed Constitution through the various layers of leadership and governance that are provided for.
But these spaces will mean nothing if we don’t grab them and use them…

Sunday, July 25, 2010

Old Bad Habits Die Hard….But We Must Force the Change We Want and Deserve

It’s the same old illegal, impunity-laden script that ridicules and insults Kenyans. It’s the “uta do?” culture at its best.

President Kibaki illegally dishing out districts as bribes on the eve of a historic vote, even after court rulings that clearly state that he can’t do this. Francis Muthaura instructing civil servants to campaign—using our tax money—knowing full well that this is illegal and against the provisions and spirit of the Public Officer Ethics Act just as he did in November and December 2007 under the guise of “popularizing Vision 2030” and leading to serious frustrations within the electorate that one PS car was stoned in Kisii.

And Prime Minister Odinga criticized this in 2005 and 2007 so his change of mind is incredulous!

MPs holding the country to ransom so that they can—in full unity and despite political differences—increase their perks and income even when they are the best paid MPs in the world, coming from one of the poorest nations in the world…

It’s insulting, unacceptable and wrong, no matter what the objective. Yes, civil servants can vote and have rights to expression, but not on our time and not using our money!!

And it sends a clear message to Kenyans about what to expect if the referendum passes on August 4th: The political class and the powerful elite will try to continue with “business as usual.”

They don’t see that passing a new constitution is symbolic of a break with the past. They don’t see that this should be the start of a new beginning, a new Kenya that makes them accountable to the people, rather than to themselves. They don’t see this as a step towards liberating Kenyans so that we have the space to think for ourselves and determine our own future politically and economically. No. The political elite see this as a contest and a game that may not change the rules that much.

In a sense this period and these sensibilities are quite similar to Moi/KANU in 1992. They passed the amendment allowing for multi-parties but continued to run the country like a one party state, without regard to anyone but themselves. And that opened the floodgates for one of the biggest episodes of corruption that the country has ever seen. It’s similar to 2002 when Mwai Kibaki was elected on a platform of change, zero tolerance to corruption, and reducing tribal divisions, but then slumped back to the old bad habits within months, crushing our hopes and aspirations.

It took the crisis in 2007/2008 to put us back on the path that we should have been on in 1992 and 2002!

And so they think they can continue doing the same old bad things, in the same old bad ways. So we Kenyans must stop them, for they can’t do so themselves.
How to force them to change? First, by preparing now for tough struggles in the immediate post referendum period, whichever way it goes. We must not give them a honeymoon and should send strong, firm messages, as early as possible, that we, unlike them, believe in the spirit of the Proposed Constitution and we intend to make it live and breathe for us, ordinary Kenyans. We must prepare to challenge the MPs and make them pay taxes as a first step to rationalization of the huge salaries that the top levels in “public service” take from us rather than earn it. We must get ready to force accountability for the offences during this referendum, beyond the Agenda 4 Commissions declaring that it is illegal for public servants to campaign. We must be ready to take up issues that increase the dignity of Kenyans, true to the rights that are in the Bill of Rights of this Proposed Constitution, especially breathing life to the right to protest and demonstrate against the political class.

It won’t be easy, and there will be obstacles and hitches. But we must test it and bring it to life. That is the challenge. They are not willing to change their habits, so it’s up to us to teach them that we will not accept the old bad habits anymore. And the sooner the better.