Fahamu (Oxford)

Kenya: Working On the Things That Really Matter

opinion

During his time at the commission, Mute recalls many achievements on behalf of Kenyans. But there were also times when people appeared to be momentarily distracted from the things that really mattered

I wish to reflect on some of my work during the past nine years at the National Commission on Human Rights under the theme: working on the things that matter.

It was the poet Emily Dickinson who said:

"If I can stop one heart from breaking, I shall not live in vain. If I can ease one life the aching, or cool one pain, or help one fainting robin unto his nest again, I shall not live in vain."

For the past nine years, I have had the privilege and honour of serving as a Commissioner at the Kenya National Commission on Human Rights. During that time, Kenya has encountered momentous triumphs at many levels: the people made for themselves a new Constitution; Kenyans now may speak and associate howsoever and with whomsoever far more than they ever could have; even economic and social rights now are justiciable in our courts. Yet adversity has been an undeniable fraternal twin of this prosperity, as sadly illustrated by the post election violence of five years ago.

In my time at the National Commission, I couldn't help noticing and being extremely concerned by the extent to which all those of us that should know better - civil society, commentators, professionals, academics, leaders of faiths - would even if momentarily become distracted from the things that really mattered: how often we focused on the look, the head-lining sound-byte, immediate glorification. Strategy was blinkered by ad hoc tactics and callow thinking. Far too often, we kept making demands of society using absolutist terms. Our debates, advocacy campaigns and even research far too often were framed in overly strident, dogmatic and exclusive terms. Our conferences and workshops dispensed high-minded rhetoric on national unity, transparency and accountability; then our actions or inertia fragmented us into the cocoons of our ethnicities, faiths, genders or orientations: that is why you could always surmise the political allegiance of a columnist or commentary writer prior to the 2007 elections once you worked out their ethnicity.

So, what things really do matter? And, what things don't?

Surely, we have lent too much credence to form, appearance and perception. We have responded in the heat of the moment without taking stock of the medium-term and long-term. We have consequently allowed ourselves to be outmanoeuvred on important issues such as establishing the right balance between protecting individual rights and securing the country against terrorism: for far too long civil society pontificated against legislation and stuck their heads in the sand; and I kept saying: the moment there is a major terror outrage, a bad law is going to be passed. So, now, if the law Parliament passed hurriedly this year undermines individual liberties, to who shall we account?

Surely, what really matters is that your next-door neighbour who happens to be of Somali ethnicity shouldn't be stopped when you are not being stopped: you know her well; yet she is obviously a terror suspect? And I am not stopped because my brown teeth clearly mark me out as a likely robber?

So, what matters here? To my mind, there is no such thing as a reset button which we as Kenyans have pressed or will press to return to some idolised default setting approximating our best set of values and principles: I say this even in spite of our new Constitution. I mean, just look at our epic truth, justice and reconciliation process!

Approaches and attitudes in our society swing in arcs, like a pendulum, from point to point. What we may influence, by our actions or inertia, is the next point that the pendulum may stop at. That is why in the face of apparently great societal resistance the National Commission had to keep shining a torch against capital punishment in this country; why you must all keep asking the Catholic Church, my Church, why the Episcopal Conference of Bishops did not stand firmer during the constitutional debate in support of abolition even while Church doctrine is clearly now against the death penalty. That is why I do know that in due course the pendulum will swing to a point where Kenya too will repeal Section 162 of the Penal Code which criminalises same-sex acts.

And yet, the strength of our society is its diversity of character and views. Society cannot simply tow your line because you are an abolitionist or because you are pro-choice. That is why it would be futile for you to be too upset or angered by those who are in the opposing camp: those who support the death penalty or who are anti-choice or homophobic. The best you must do is seek to influence the pendulum's arc. That is what we sought to do at the National Commission with our reproductive rights inquiry and our occasional researches.

And so, again, for the things that matter. Forty years ago, a peasant couple in rural Meru opted to send their three-year old blind toddler to a far-away mission school for the blind. No wonder then that a veritable armada of grannies closed in for battle: where are you taking the child? Is it that there is no food here that you should abandon him to strangers? Is there not enough grass here where he may play?

The 2006 UN Disability Convention now affirms, if there needed any such affirmation, that children with disabilities must get an education as a matter of right on an equal basis with their non-disabled peers. So, back to the things that matter: yes, every single teacher, but really more so that unsang teacher who each day must complement his classroom training to ensure that the autistic child or the child with intellectual disability or cerebral palsy is toilet trained, and that those disabled children too do get an education; so that while you elite parents demand that your high-end academy remain at the top of the national performance table, this teacher thinks: this year I succeeded: I performed because one more disabled child smiled or said "baba".

That is what matters: that even those of us whose children may be in private academies will surely hail the 2011 High Court decision which reaffirmed that it is not unfair discrimination for State policy to determine that children from public primary schools (read lesser-endowed backgrounds) may get placements in top secondary schools on an affirmative basis.

One other thing that matters is the paradigm shift established by Article 12 of the Disability Convention: that all those of my disabled sisters and brothers who you typify as insane or of unsound mind or mad actually do have legal capacity which they exercise on an equal basis with others. Kenyans should ask themselves why they should have a ballot while the new Constitution says a person of unsound mind should not. Are Kenyans that really sound of mind when they vote for a war-mongering or thieving politician?

These are the things we all need to keep asking: that even as we seek to resolve the one-third gender constitutional quandary, women (and men) may not countenance that a percentage of that one-third should or could be women (or men) with disabilities; as though persons with disabilities really were neither male nor female!

That, despite what Justice Majanja said last month when allowing losing presidential candidates to be included in party lists for nominated seats, is the priority consideration really about some high ideal of democracy? Is it not the case that persons with disabilities will be shunted from their constitutionally-established seats in deference to losing candidates or candidates' spouses? And then, when a deaf candidate seeks to go to court, a learned friend will ask her to raise five million in fees and disbursements!

What really must matter is substance, the end-product ... and I know here I almost sound like Machiavelli ... almost but not quite.

At the National Commission, the thing that mattered to me was not a theoretical or impetuous expression of our independence and autonomy. What really mattered and which must continue to matter for Constitutional Offices and Independent Offices is that they are able to exercise their independence with judiciousness, with political astuteness and savviness.

In 2008, it was incredibly fascinating to be part of the conversation on whether to include or exclude names of alleged perpetrators from our post-election violence report, ON the Brink of the Precipice. One view worried that since we had not undertaken a criminal investigation, perhaps we should not include names of alleged perpetrators in the report. The majority view though was that our statutory role as a national human rights institution conferred upon us a human rights investigatory mandate and excluding names of alleged perpetrators would not enable effective closure by spurring the other mandated agencies to do their work with expedition. When the International Criminal Court indictments happened, I recall some of us asking each other: if we knew this is how things would have turned out, would we still have done the report the way we did it? And, from me, the answer remained decidedly affirmative: yes, we would.

One of the things being in the Commission illuminated for me is that the potency of policy stays shackled so long as rank and file individuals are unable to benefit from it. We have been perhaps far too quick to lurch onto systemic actions and responses: public inquiries; class suits; macro-responses. In the end, we need to keep in mind that it is an individual that is violated: a child defiled; a disabled person run out of school because her dyslexia damages the school's mean grade. That's the essence of the Emily Dickinson quote I began with earlier.

Take the National Commission's capital punishment campaign. When President Kibaki commuted the sentences of over 4,000 capital convicts into life imprisonment in 2009, we all commended it. But at Kibos GK Prison, the National Commission now finds that those whose sentences were commuted to life imprisonment still remain in condemned cells alongside other capital offenders: nothing really had changed for them; yet we praised the President's actions at the world's various human rights tables: treaty body committees, the Human Rights Council, the African Commission on Human and Peoples' Rights ...

So, to the question did we make a difference on the things that really mattered, yes, I think we did, but let the jury deliberate, long and hard.

What now I know with certainty is that you could not possibly do human rights work if you were a pessimist. Earlier this year, the National Commission launched a report entitled: It's Hard to Be Good. This was an assessment on how it had effected its mandates since its establishment in 2003. Then, two months ago, my six-year old saw the report on my desk at the Commission. Now, Raphael on occasion can be rather unkind to one of his sisters. So when I asked him why he was not nice to Bakhita, he thought for some moments, and then told me: "You see, Dad, it's hard to be good!"

Lawrence Mute is a former commissioner with Kenya National Commission on Human Rights. This article was adapted from the acceptance address he delivered at the award of 2012 Jurist of the Year by the Kenyan Section of the International Commission of Jurists, 7 December 2012.

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