Wangui Wa Goro
14 February 2008
opinion
On December, I wrote a piece for Pambazuka News reflecting on the pending elections entitled THE LONG ROAD TO DEMOCRACY. As in the 2002 elections, I was wary that Kenyans would be taken for a ride again.
It is chilling how soon the almost prophetic words I wrote came into play, not for the reasons that I had anticipated, in relation to people exercising their right to vote, but in what happened in the aftermath of what was an impressive election turnout. The inconclusive electoral process, particularly the tallying of the presidential elections and the subsequent violence, loss of life, damage to property, the fleeing of many Kenyans, the near collapse of the state and the fragile thread by which the state institutions are still held have left Kenyans and the world in deep shock because many did not anticipate such contested outcome and of that scale. The fabric of what has held society together has ripped severely in several places and in some places, very badly.
Kenya has been very lucky that the call to the international community was heeded through the intervention of the institutions and governments such as the Africa Union, the United Nations, the European Union, the United States of America, Canada and Britain amongst others. This responses has included His imminence Archbishop Desmond Tutu, former African heads of States, President Kuffour of Ghana and then head of the AU, Jendayi Fraser, US Assistant Secretary for African Affairs and the Secretary General of the UN, Ban Ki Moon and Kofi Anan, former Secretary General of the UN, the East African Community, and many other governments, institutions, organisations and individuals who wish Kenya well, including many Kenyans. It would be very impervious leaders who would fail to notice the depth which the Kenya is in, nor should they fail to heed its urgency and the importance that Kenyans and the international community are attaching to its resolution because we all know that if it spirals out of control, it will be a intractable as the last few weeks have demonstrated.
Many critics and observers, journalists including, members of the Kenyan and international civil society and many human rights activists, academic, scholars and several individuals have come out strongly to state that the current crisis in Kenya has long roots which date back to the colonial and post colonial era and should not be simplified to "tribal warfare" which it clearly is not. They observe that the electoral crisis has unearthed these simmering ills for several reasons including political manipulation, as well as genuine pent up frustration and anger over long festering hurts as well as outrage at the electoral crisis and the ensuing turmoil which has left Kenya in an unresolved situation where there is no clarity as to where power lies. Key to this is an outmoded constitution, a catalogue of violations including economic and human rights violations which although widely debated has not been resolved. Other concerns include real and perceived inequality and marginalisation, discrimination and the breakdown of the rule of law and mechanisms of democratic accountability.
As many have pointed out some of the key urgent issues include the finalising the constitutional review, entrenching multiparty democracy, equality, fair and proportional representation, equal opportunity and access to services, goods and resources, protection of the citizen and fundamental rights, intercultural understanding and the issue of devolution of power amongst others. For instance, on the land issues, the Rift valley crisis in the 1992 - 1998 left many people homeless and many others dead. During this time, over 1500 people lost their lives and over 300,000 people displaced including internally and internationally. Many of these people have never been able to return to their homes and this issue has never been dealt with conclusively despite the production of the several reports with strong recommendations which have been left collecting dust. Similarly are issues of corruption and human rights violations. The international community too undertook considerable amounts of work on these issues so Kenya does not need to go to the drawing board on it. Others issues of concern include the past violations of human rights, gross inequalities and discrimination such as that of women who over several years have been considered as unequal citizens and worse, they continue to suffer various forms of discrimination and violence, including sexual violence which has now extended to the public sphere and is also being used as a political weapon including against boys and men. Many communities in Kenya also feel marginalised and therefore the question of devolution of power and resources is one which must be addressed as a matter of urgency as much as the cultures which allow such impressions for form. Most important, however, at present, is how we move out of the immediate crisis.
As can be seen, the question of how Kenya is to get out of the crisis is one which is occupying most Kenyans and the world and resolution needs to be found sooner rather than later as it may be too late. Some of those concerned, including the UN and its members, the AU, Kofi Anan and his team of imminent mediators Graca Marcel and Benjamin Mkapa and others such as the civil society and the business community agree that some of the issues require short term solution and others a longer term solution.
The immediate concerns include resolving the question of peace, dealing with the humanitarian crisis, the electoral crisis, which has unfolded leaving over 1000 people dead and over between 300000 and 600000 people displaced. The country has also come to a standstill and normal life such as economic engagement, medical treatment, schooling etc. have become impossible and these need to be resolved urgently.
The longer term issues include resolving the constitutional issue, the distribution of resources, including land distribution, issues of poverty, inequality and justice and the processes and mechanisms for achieving these. It has also become abundantly clear that confidence in the key institutions that uphold democracy including the presidency, the Parliament, the Judicial System, and the Executive has taken a hard knock and this will have to be rebuilt through demonstration.
The question of how to deal with past injustices which has led to the disquiet and loss of life, including human rights violations has become a significant one. Further, the role of the state institutions in safeguarding the constitution, protecting Kenyans and upholding the rule of law and justice have emerged as areas of weakness.
In terms of the political mandate, Kenyans have come a long way in winning multiparty politics as a mode of expression of political will and it is one which many will want to safe-guard. Multipartism was touted as the model for democracy but this has not proven to be helpful on its own without clear reforms of the powers of the presidency, the constitution and the supremacy and independence of the key institutions of governance and state management including the Judiciary, the Executive and the Parliament. Therefore, most people are agreed that new constitution needs to be put into place urgently. One way that has been suggested is the formation of a transitional coalition government to allow the key processes and mechanism to be put into place before fresh elections can be held. So far, this has been talked about in terms of parliament and the current political players.
Many are weary, however, owing to past failures of power sharing in the post 2002 elections and the fact that the key players are the same ones, Raila Odinga and Mwai Kibaki. This has cost Kenya several years and the current crisis has only exacerbated our impatience. It does seem that the idea of a coalition government of National Unity is seen as unsatisfactory in the long run as it leaves the question about the presidential election outcomes unanswered and therefore the question of trust. The hope is that this matter will be addressed squarely.
Kenyans have fought long and hard to break the deadlock of single party rule which led to dictatorships (in most of Africa and Kenya was no exception) in the belief that oppositional politics would enable accountability. It seems clear that a model or method which is acceptable to Kenyans needs to be found to place the instruments of democracy on a right footing so that we do not become appendages to any individual or party. The legacies of dictatorship still abound and Kenya has been dogged by inequality, corruption, lack of accountability, transparency and fair meting out of justice. For instance, at present, only the president has the powers to open, prorogue, recess or close parliament. This has shown that social practice is difficult to break without explicit expression, training and commitment to transform society from the bottom to the top and vice versa and without mechanisms for accountability to the people. The importance of the institutions and mechanisms which enable a healthy societal engagement in the democratic process is therefore critical including the fundamental rights of assembly, representation, association, life and freedom of expression.
The Kofi Anan led mediation is pointing to the importance of institutionalising democracy rather than leaving it as a promise of words on paper. This he is doing through placing the mediation process for endorsement and deliberations to Parliament as the appropriate arm empowered by the constitution to do so on behalf of Kenyans.
Many are calling for a transitional government of national unity to see through some of these processes by bringing together the various parties to work in what is called as a grand coalition, in a departure from the traditional model of looser takes all, given the current crisis. This power sharing may be useful if it is accepted with honesty and transparency and if it is allowed to tap into dialogue and consultation with the ordinary mwananchi either through their elected representatives through a broader coalition or through other fora. It will also need to takes advice from others who are experienced or those who may have insights into how the process can work through neutral or independent positions such as Kofi Anan and the imminent persons group and other international independent bodies such as the UN. Many hope that their involvement will continue through the transitional phase and beyond.
As well as the dialogues taking place, Kenya does have several instruments which can be used in search of justice and peace. Since the discussions of power sharing came up with the drafting of the new constitution and also the power sharing arrangements that were anticipated after the elections in 2002, many Kenyans are concerned that positions should not be created to appease individuals and that unprincipled peace which covers up crisis whether corruption, human rights violations or electoral crisis without resolution should not be sought. The critics argue that constitutional matters are for the country not for individuals or parties. However, these should not be so binding that people's attainment of democracy is held to ransom and therefore the flexibility introduced by the mediation mechanism, underpinned by international support is important.
The use of existing instruments such as the Electoral Commission, the Courts and Parliament should not be selective and where these need strengthening, this is the opportunity to do so. These can be strengthened to function to acceptable standards for instance, the courts, the electoral commission, parliamentary representatives, the police and armed forces and the citizens themselves though tighter regulation, monitoring and evaluation . As Maina Kiai pointed out in a recent interview, for instance, in relation to the police: "The police have always been a problem in Kenya because they're colonial police. They were structured by the colonial regime not to be a police force to fight crime, but to repress the population against standing up against the colonial government".
In another instance of selectivity, some have argued that if local elections are being run as the regime in power has proposed, then it should be possible to use the process to resolve the presidential election gridlock. Other instruments available to the citizens include the referendum, should the parties fail to agree on fundamental issues. The transition can also be buoyed by existing and new mechanisms such as a recall of BOMAS or a reconstituted BOMAS (body involved in the constitutional review ) or even a National Convention as some have suggested. Kenya is also a signatory member to many international instruments and so international support can be sought to ensure that Kenya stays within universally accepted mandates and standards.
Much hope is therefore pinned on the success of the negotiations which are taking place, although many are sceptical about the good will with which the parties have entered the negotiations and their capacity for staying power once the mediators have left. Kenya as a long history of betrayed promises and the danger is that if these talks and their outcomes fail, Kenyans will take the law into their own hands and there may be no turning back. Peace and fundamental freedoms such as the right to life, the freedom of association, the freedom of assembly etc. need to be restored and protected so they are not withdrawn at will just because they do not suit one party or the other.
Over and above these, there have been calls for a Truth and Conciliation mechanism which would allow the past ills to be addressed. This has to be worked out carefully because many fear that such a process could come with impunity, take too much time and may not in itself finally resolve the issues satisfactorily, particularly where a constitution and legal system have been violated.
Most people are however, agreed, that whatever happens at all levels of society needs to happen quickly and it is useful to see that the Kofi Anan initiative is placing a programmed agenda on the table, because as cynics fear, left to the various parties, they may continue serving their own vested interest to the detriment of processes and peace in such a volatile context.
Many are asking what the international community can do and here too, schisms have opened up because some of the failures point to the kinds of relationships that Kenya has had with the some members of the international community. It is therefore important that the international community continues reading from the same script and applying the same measures by working together on the basic issues and within acceptable international frameworks. Beyond the immediate goodwill in the humanitarian and democratisation process, here too, deep questions about the real kinds of relationships that Kenya has had with the some in the international community need to be examined and transformed. It is clear that some of the past injustices have taken place with the knowledge and sometimes connivance and complicity of the international community and this need not continue. All it will do is continue to harm Kenya's chance for peace and jeopardize those common interests which are claimed by those players. A forward looking robust agenda which engages Kenya as a partner would greatly assist the processes on the ground because it would send the message that Kenyans are worthy global citizens like any other citizens of the world with equal right to fundamental rights. Different standards have been applied to Kenyans, Africans and many in the developing world and this has got to stop.
As ordinary Kenyans, we too have deep soul searching and facing up to do and it will not be easy or pain free. We should be brave and face our demons together and find ways of laying them to rest. We have in the past opted for denial and this has now exploded in our faces. Only when we face ourselves individually and collectively, that is assuming that most of us want to, can peace, truth and justice prevail.
Dr. Wangui wa Goro: Kenyan human rights activist, writer, translator, academic and public intellectual. Currently Associate Fellow at the Institute of Human Rights and Social Justice; London Metropolitan University.
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