Thursday, December 29, 2011
at 5:36 PM ·
By Jerry Okungu
December 30 2011
As 2011 comes to a close, many nagging issues on our continent need to be reviewed and scrutinized carefully in order to make a clean break from an otherwise tormenting year for many countries in Africa. Unfortunately a lot of problems the continent faced were of a political, governance or human rights nature , issues we expected the AU chairman to take decisive actions on and save the continent from perennial embarrassment by being a mere bystander as the rest of the world decided for us.
It all started with the AU fiasco on Omar El Bashir and the Ocampo Six when John Ping mistakenly misadvised the AU to undermine the ICC mandate in dealing with crimes against humanity in this continent. It was interesting to note how John Ping was just to enthusiastic in supporting indicted individuals as opposed to their victims in Darfur and Kenya, some of whom were maimed, displaced or had been raped and massacred. These heart rendering atrocities in Darfur and Kenya did not move John Ping one bit.
The helplessness of the AU under John Ping was to come out again more prominently when Ivory Coast was burning following that country’s general elections outcome which the then President Gbagbo refused to accept after he lost to the opposition. The AU’s usual foot-dragging under John Ping half heartedly tried to appease dictator Gbagbo by asking him to share power with the winner, Mr. Ouattara.
Initially the AU exhibited some seriousness in the unfolding Ivorian drama. It appointed Kenya’s Prime Minister, Raila Amolo Odinga to try and mediate between the warring presidential candidates.
When Raila Odinga realized that no amount of negotiation would succeed with President Gbagbo, he recommended that the AU use force to remove the loser from power. That report sent shivers down the spines of many dictators around the AU summit prompting them to form a ten member committee to deal with the Ivorian crisis. Incidentally that membership was composed of other dictators with no credibility internationally. It even included President Mugabe who refused to hand over power after losing the general elections in 2008 forcing the winner to share power with him in a coalition government.
As the AU under John Ping was twitching its fingers, other powers with interest in West Africa were plotting their own intervention. When all seemed lost and lives were being lost; thanks to President Gbagbo’s undemocratic thirst for power at any cost, the French troopers finally stormed his bunker and flushed him out together with his equally violent wife. As I write this closing episode for the year, Mr. Gbagbo is in jail in The Hague awaiting trial for crimes against humanity. When the French soldiers invaded Gbagbo’s bunker, the AU did not even know what was going on.
2011 was a really bad year for the AU under John Ping. It was the year of the Arab Spring uprising in the Arab North Africa. It all started with a young jobless Tunisian university graduate roasting maize by the roadside. When the usual city council soldiers confiscated his maize cobs and razed to the ground his humble stall, he set himself ablaze and eventually died in hospital.
It was that single act of harassing poor citizens in the streets of Tunisia that planted the seed of revolution. As Tunisians went amok and took the country by storm, there was no voice of reason from the AU to try and calm things down. The AU watched as one of its prominent members was sent packing together with his family. People power had toppled an insensitive regime.
As the AU was busy figuring out what had happened in Tunisia, another Arab Spring uprising was in the offing. Tahir Square in the center of Cairo was the venue of another people power that eventually forced Hosni Mubarak into early retirement. For the Egyptians, they were tired of the aging dictator’s oppressive rule. They chose to face jail, beatings and even death rather than continue enduring his brutality. The modern Pharaoh had gone too far.
During all this turmoil that saw Egypt come to a standstill, no meaningful voice of reason could be heard coming out of Addis Ababa. It was like Egypt had never been part of the AU family. Hosni Mubarak was left to fend for himself; something he didn’t do very well considering his age and failing health. He is now in custody and on trial for the killing of thousands of Egyptians throughout his 30 year misrule.
The worst performance of the AU had to come later in the year when Tripoli erupted in unprecedented revolt against the Libyan strong man, also known as the King of Kings. When it was evidently clear that the Libyan crisis was taking a different dimension from the Tunisian and Egyptian revolutions before it; it presented the AU with the best opportunity to intervene and stop Kaddafi from slaughtering his people that he had labeled rats and cockroaches that he would crash.
As the crisis snowballed into an armed civil war with Libyan forces having the upper hand over rebels, the AU refused or hopelessly found it impossible to meaningfully intervene. It only started to make feeble noises after the UN passed a resolution authorizing NATO Allied Forces to give rebels cover and stop Kaddafi from further slaughtering Libyan civilians.
Considering that for years Muamar Kaddafi had financed most AU summits and underwrote a lot of AU expenses apart from being one of the most recent AU chairmen, it was a pity the organization he helped build had to allow him to go the way he went.
When all is said and done; it was the prevalent bad governance and violation of human rights that brought down Gbagbo, the Tunisian President, Hosni Mubarak and finally Muamar Kaddafi. Had the AU enforced its own code of conduct and forced its member states to play according to the APRM guidelines, we would have not had fiascos in Kenya, Ivory Coast, Tunisia, Egypt and Libya.
Good bye John Ping. You have failed Africa big time.
at 4:55 PM ·
By Jerry Okungu
December 30 2011
As the year comes to a close, many Kenyans will thank God that finally the worst year is gone for good.
It was indeed a year of many challenges for us as a nation and at times a bad year for many individuals.
At the personal level, it was the year Prof. Peter Anyang fell ill with prostate cancer and had to spend sometime in Sanfransisco undergoing treatment. Five months later, yours truly had to experience the same ailment and was to be hospitalized in Nairobi for five weeks before being flown to Emory University Hospital in Atlanta for further treatment.
Later in the year, Kenyans had to lose two prominent Kenyans to other forms of cancer. Prof Wangari Mathai our only Nobel Peace Laureate succumbed to ovarian cancer as one of our Court of Appeal judges also succumbed to another form of cancer.
On the political side, Kenyans did not fare well either. Our six prominent Kenyans were finally taken to The Hague to face charges of crimes against humanity following the 2007 post election violence. Despite protests and blame game that became the trade mark of the MPs and other leaders affected, they finally appeared at The Hague for preliminary hearings in April and September 2011. As I write this article, they are anxiously waiting to hear if their charges will be dropped or proceed to full trial.
While on The Hague trials, the Kenya government did not fare well either in trying to block the ICC hearings for the Ocampo Six. Attempts to lobby the AU, individual African leaders that included the toppled Muamar Kaddafi and UN Security Council members to prevail over the ICC to defer the Kenyan cases fell on deaf ears. The aggressive shuttle diplomacy that was partially conducted by one arm of the Coalition government only managed to swallow millions of Kenyan shillings with nothing to show for it.
It was also the year of national embarrassment when several MPs chose to escort the Ocampo Six to The Hague and made fools of themselves by singing on the streets of The Hague in solidarity with the charged politicians. Unfortunately when they got to the ICC, they were barred from entering the court room. And just like ordinary Kenyans they had left in Kenya, they were forced to follow the proceedings on television screens.
On the economic side, it was a terrible year for Kenyans when the Kenya shilling became the worst performing currency in the world by losing 30% of its value in just three months. When the shilling fell from 80 to 107 to the dollar in just weeks, inflation shot through the roof from a mere under 6 to 19.6 a 300% rise in just ten months. As this slide continued, fuel pumps also jumped from Ksh 80 a litre to Ksh 124 per litre, the highest fuel pump price that Kenyans had ever seen. With those two steep rises, all prices of basic commodities suddenly became unaffordable for most Kenyan households. However, this national economic disaster did not deter the National Assembly Speaker from ordering new chairs for Parliamentarians at a cost of Ksh 200,000 a piece despite public protest.
On the brighter, Kenyan athletes did Kenya proud by winning many gold medals around the globe and at times either breaking world records or just generally coming tops in every long distance race.
Another gem in our lives was when Kenyans came together to raise close to Ksh 700 million to feed the nearly 10 million Kenyans facing starvation despite the AU summit failing to raise any substantive amount of money at the special summit to discuss famine in the Horn of Africa.
Having had such a year of mixed fortunes, what do we expect in 2012?
We expect the Ocampo Six cases to be settled one way or another so that we can move on with general elections. We also expect the High Court to decide whether we will hold elections in August 2012 as stipulated in the constitution or push it to December 2012 as the IEBC chairman prefers. Either way, we will have elections in 2012.
The year will also see President Kibaki joining Daniel arap Moi in retirement leaving the succession battle wide open. This means that before 2012 ends, Kenyans will know who their new President will be from among the ten plus contenders who have announced their interest.
The year will also usher in new administration units as the provincial administration disappears from our life. The first casualty will be the Provincial Commissioners and DCs who will be replaced by elected County Governors, their deputies, chief officers and County Assemblies. Also to disappear from our political realm will be municipal, city and county councils together with their mayors, chairmen and councillors.
At the national level, we expect to elect not just the President and MPs but Senators as well whose job will be to guarantee the well being of county governments and where possible, impeach the President or Cabinet Secretaries and any other constitutional office holder where necessary.
However, what will capture the imagination of many Kenyans will be three events; the battle between the Attorney General and the Chairman of the Constitution Implementation Commission as the struggle to implement the constitution to the letter without amendments takes center stage. Also of interest will be how the Ocampo Six cases develop at The Hague. In the event they are acquitted or charged, how will the decision impact Kenyan politics?
However, the mother of all battles will indeed be the presidential race! Will the G7 or G47 hold together against the ODM nominee? Will Kalonzo Musyoka, William Ruto and Uhuru Kenyatta go it alone or come together merely to stop Raila Odinga from becoming Kenya’s 4th President?
In the event that Kalonzo, Uhuru and William Ruto find their names on the ballot box, where will this scenario leave Eugene Wamalwa, Omingo Magara, Moses Wetangula, and Ali Makwere who have also declared their interest in the race under PNU Alliance? Will Uhuru Kenyatta contest the presidency under KANU leaving PNU to George Saitoti?
The 2012 calendar is definitely packed for Kenyans.
Monday, December 19, 2011
at 9:29 AM ·
By Peter “Dj Xpect”Kerre
“Just how deep is your access to the Kenyan community in the USA? Do you think you really know? Are you sure? 100% sure?” That is a serious question the Kenyan embassy to the US should be asked. I feel tempted to accuse the Kenyan embassy in theUSAof negligence in reaching out to and serving Kenyans in this country, but then I refrain and ask myself, “Maybe they just do not know how to really get to majority of the Diaspora out here?” Well….no. There is no letting them off the hook. The Kenyan Embassy has way less outreach to and even influence over the Kenyan community in the US than they believe and/or are leading Kenyan government officials and politicians to believe and I will share with you my opinion why this is so, as well as why it may be a ticking time bomb.
First, let me begin by defining the process in which the embassy has been seen to reach out to the Kenyans in the US. The Kenya Embassy has established contacts with different Diaspora Kenyan Organizations and Churches spread across the US. It is these organizations they contact when they want to initiate meetings in the respective cities, or whenever a politician is in town. I will call these (Church and Kenyan Orgs) the first shift. Some of these organizations are old and some are new. These organizations’ leadership consists of mostly older Kenyans. To give them props, they do indeed have quite some clout but mostly among the church goers and family Kenyans.
The downside of the first shift is that many of these organizations, and even churches might have began with good intent but have been turned into fronts for political and tribal alliances. It doesn’t take that long of being a member of one to realize that this is an ODM leaning organization or a PNU leaning organization. Some organizations’ members are very brazen about this and do not hide it. Many of them are also currently embroiled in internal disputes as their board members, whom I mentioned to be older Kenyans, try to run the organizations with an old school Autocratic style of leadership. It is also not hard to notice that despite having women on their boards, there are barely any of these organizations with a Kenyan lady as head of the board. Before I am accused of witch-hunting, let me clarify that this does not apply to all Diaspora based Kenyan organizations, just majority of them.These are the go-to folks of the embassy. Most of these senescent relationships were built in pre-dot com societies, and have continued to live along.
There are two forgotten shifts in the Kenyan Diaspora that represent majority of Kenyans in the USA. 2nd shift is the social media shift and 3rd shift is the nightlife shift. I have chosen to list 2nd and 3rd shift together because they usually share the same folks. Despite consisting of majority of the Kenyan Diaspora, most of the 2nd and 3rd shift folks barely know of any existence of the Kenyan Embassy save for what they read in the newspaper. When I say ‘barely know of’, what I mean is that the embassy plays almost no role in their life, and this is not by choice. As I mentioned above, the Kenyan embassy has been so traditional in its methodology of reaching out to the Kenyan Diaspora that they have a false sense of how many Diasporans they have access to. 2ndshift Diaspora Kenyans also tend to include majority of the students, most of whom flew to the US straight from home and enrolled in a local college in either a small or large town.
For most, their only connection with other Kenyans is through facebook and/or twitter. 2nd shifters are extremely aware of the happenings back in Kenya and usually tend to be very active in online forums that not only discuss current affairs, but also politics. They have been vocal for years online with limited effect however based on the global tide of social media activism, this 2nd shift is beginning to group up and formalize their interactions with the hope of having more impact. The conveners in the 2nd shift tend to be bloggers, scholars, and the ever growing popular online radio stations. If you speak to the 2nd and 3rd shift Diaspora Kenyans and ask them about decisions being made on their behalf by people claiming to be spokespersons for them, they will not hide their disgust at the mis-representation because they are fully aware of current shortcomings. I personally attended a meeting between a large Kenyan delegation that included President Kibaki during the annual United Nations general assembly, and I actually was not aware of the event until a 1st shift Diaspora acquaintance notified me.
I was mortified when at the end of the meeting, the lady chosen to speak on behalf of the Diaspora broke out into worship and praise for president Kibaki and the ministers, telling them how much we love them and all the wonderful things they are doing for us. She raised no concerns or recommendations on our behalf. I was to later find out that diasporans chosen to speak at these events are thoroughly vetted so they can prevent someone from telling them how we really feel, and this doesn’t necessarily have to be negative, but just that they’d prefer to let someone ready to kiss major behind. Worship sans criticism
The big question then is, “Why the 2nd and 3rd shift diasporans do not join the 1st shift diasporans so as to keep abreast of community happenings?” Well many of them will reply and tell you that they keep off because they have attended some meetings and felt unwelcome. “I would definitely love to go to a church mainly frequented by Kenyans in my city but how will I feel welcome if during and after the service they only speak in vernacular language? I only speak English and Swahili”, told me one young lady. Her sentiments were echoed by almost five other random Kenyans I asked and they felt the same about Diaspora organizations, though for the most part many of them had never heard of any Diaspora Kenyan organizations.
Additionally, they asked why one would have to join an organization in order to have their voice or opinions heard. Why not offer different channels which are more aligned with newer technology as a means to get out to the masses? An 18 year old college freshman in Washington DC is an adult Kenyan just as the 52 year old Kenyan businessman. You cannot tell this 18yr old young adult that in order for their voice to be heard, they have to align themselves with a local organization and have to attend their meetings in order to chip in. It’s like telling Justin Beiber that for his music to be heard, he has to sing Frank Sinatra-esque music. This 18yr old would rather have a line of communication within a preferred medium of his or her choice, probably facebook in this case.
The 3rd shift hands down is the one shift that contains the greatest access the Kenyan Diaspora. The 3rd shifters go to school, they work, they live their separate lives, and many are church goers too (simply attend service and leave), but the strongest way they keep up with Kenyan tradition is through partying and nightlife activity. Unless you have been living under a rock, partying is tied into Kenyan culture. It is no secret that we enjoy getting our groove on and socializing. Kenyans are even known to make big business deals over a few cold ones at preferred locals. In the same way you could call on the embassy to embrace new technology and social media as a means of reaching the masses, they should have already by now embraced our affinity for social gatherings to get to the masses.
As an example, former Kenyan Ambassador to the UN, Hon. Zachary Muita, was a well loved man by tri-state residents. Realizing that social gatherings were embodied into Kenyan culture, he often threw social gathering events at ‘Kenya House’ in New York and the result was very solid relations with the community as well as him being well informed on what was happening on the ground all the way from the street level up. The numbers that the third shift can pull out to an event are staggering. A first shift congregation can bring out about 100 folks while a 3rd shift gathering in the same city brings out about 400 Kenyans. How do you get to the 3rd shift? Very simple….the DJs and the promoters.
I could easily provide a list of 30 ‘must have’ names of Kenyan Diaspora DJs and Promoters whom if were to all send out an e-mail or text, you are guaranteed to have reached almost 90% of the Kenyans in the US. These Djs and promoters aggressively hustle for their events and to that extent, have a foot in each shift. They know the 1st shifters, the 2nd shifters, and the 3rd shifters. They throw events on a weekly basis and know the well being of hundreds of Kenyans within a certain radius of the cities they live in.
The 3rd shift have major outreach to masses locked down, as evident by pulling together 20,000 Kenyans during the Las Vegas rugby sevens even, and thousands the Dallas Memorial reunion, Jersey and Kansas July 4th events, Washington DC and West Coast Labor Day events, name it. Tell me when, if ever a US Kenya embassy event has brought out more than 1,000 Kenyans. The role that the 3rd shift coordinators i.e. Djs & Promoters play is so large that their role usually expands beyond leisure. Many times there is an emergency or bad situation in the community, they have also had to step in as facilitators to bail some out, arrange funerals for others, and even work on looking for family connections.
If there is to be effective outreach to the Kenyan Diaspora, the Kenyan government must have a system in place to reach all organs of the 1st, 2nd, and 3rdshifts of the global Kenyan Diaspora. These shifts exist all over the world. The whole talk of ‘We have a facebook page’ will not suffice. Many corporations and organizations create facebook pages to save face and act like they are adapting to social media but what good is the facebook page or twitter account if you do not know how to use it? Such social media mechanisms have to be managed professionally. Communications and interactions should be documented and feedback sought. It is the embassy’s responsibility to step out of the box to reach out and try to find out where Kenyans are, how they are living, where they socialize and network.
When asked this question, too many embassy officials respond saying that it is the people not reaching out to them. What they forget is that they are being paid to reach out to, serve, and represent the Kenyan Diaspora. It is very important that this message get out sooner than later, because as we approach a year in which the Diaspora will be able to vote for the first time ever, we now receiving crucial visits like from bodies like the Independent Electoral and Boundaries Commission, and they are making their city to city visits probably based off feedback given by the embassy, whom as pointed out, have less outreach than they are aware of.
It is for this very lack of outreach that the Kenyan embassy to the USA is largely unaware that a large number of diasporans are unhappy about their service shortcomings (most notoriously being simple things like lack of courtesy and effective response from the embassy when contact is made seeking information or help) and there are tremors in the e-world about potential mass action, which would be shameful to them. For a very long time now, some of us have been getting by using the traditional ‘brother looks out for brother’ help support system whereby we look out for each other even in matters that should be handled by the consulate, but the masses are growing restless. With hot issues such as the probability of the Kenyan Diaspora voting, the diasporans are getting more vigilant and are growing restless about lack of proper communication because many, especially from the 2nd shift feel left out.
It is for this reason that we have formed a new facebook group in the last few days called “Kenya Diaspora Vote” which has over 1000 members and growing, to once again fill in the void by doing work which someone somewhere is being paid a salary for, and give the forgotten diasporans a location to attain information related to the Diaspora voting process in 2012. It is essential for the Kenyan government, represented by the embassy officials out here to tap into these three shifts to strengthen the derelict ties to the greater Diaspora community and address several ongoing concerns including Diaspora-embassy relations as well as concerns on our interests back inKenya. Don’t forget that these very Diaspora are the largest source of revenue for the country at this moment through remittances, and if they feel they are not being adequately represented, they could ignite mass action that would have drastic effects ranging from small protests all the way up to regime change, after all the Arab spring was born off facebook. I conclude by applauding all individuals, organizations, churches, and entities that nevertheless are doing the best they can to unite and keep the Kenyan Diaspora informed on affairs that relate to them. Kudos!
Follow the new aKtive Advocacy Group page on FB today : http://facebook.com/aktive254
Author Peter“Dj Xpect”Kerre is a DJ/Activist/Scholar based in New York City, USA. He is the 2011 recipient of the ‘Peace Initiative” Jamhuri Award as well as the 2011 recipient of the “Spirit of the Moran” African Award. DJ Xpect is also a member of the Reverend Al. Sharpton’s National Action Network. He also heads aKtive, a global Kenya Advocacy Group
Facebook: Xpect Peter
Saturday, December 17, 2011
at 6:48 PM ·
Soldiers beat demonstrators with batons in Cairo's Tahrir Square on Saturday in a second day of clashes that have killed nine people and wounded more than 300, marring the first free election most Egyptians can remember.
Friday, December 16, 2011
at 5:11 PM ·
15 December 2011
The International Criminal Court which recently elected Gambia's Ms Fatou Bensouda to take over from Argentina's Luis Moreno-Ocampo as chief prosecutor, celebrates its 10th anniversary next year. Africa remembers Moreno-Ocampo's over-zealousness while executing his duties.
Ms Bensouda called the ICC "a truly unique institution", and true to her description, the ICC's uniqueness has shown itself in that its formal investigations are in Africa where many of the continent's leaders say Africa is being "unfairly targeted".
The ICC has also come under fire for its selective administration of justice, and demonstrating that some animals are more equal than others.
The ICC is also under fire for corrupting justice and abusing international law. Although Zimbabwe is not a signatory of the Rome Statute that governs the 120-member ICC, Zanu-PF last week passed a resolution at its 12th National People's Conference in Bulawayo, condemning the selective arrest of sitting and former leaders from developing nations.
The resolution called for an end to the arbitrary arrests and also called for reforms in the decade-old organisation. This was in keeping with President Mugabe's perennial calls for the reformation of the United Nations which he argues is being abused by powerful nations to undermine the interests of weaker states.
In the past decade, the ICC has targeted African leaders arresting them and/or issuing them with warrants of arrest. The ICC, with headquarters in The Hague, has clearly demonstrated that it is yet again another Western-dominated institution whose mindset is that crimes against humanity are only committed in Africa, and by African leaders.
It has also proved that its role is to discharge the desires of powerful Western nations such as the United States of America and her allies. To date, three current or former African leaders have been charged by the ICC - Charles Taylor (Liberia), Laurent Gbagbo (Cote d'Ivoire) and Omar al-Bashir (Sudan).
The late Libyan leader Muammar Gaddafi was also targeted by the ICC. There was also pressure that his son Saif al-Islam who was captured by Libya's interim government be transferred to the ICC. Africa awaits the ICC's response to Col Gaddafi's daughter requesting it to investigate how her father and brother were killed. The ICC has also reported Malawi to the United Nations Security Council for failing to arrest the Sudanese leader in October. Its information minister Patricia Kaliati maintained, "When we were signing the Rome Statute, we wanted to be part of the international community, not to be targeted. We can as well withdraw our ICC signature."
South African president Jacob Zuma also expressed his displeasure with the manner it handles African affairs. When it issued a warrant of arrest for Col Gaddafi, president Zuma's spokesperson Zizi Kodwa said, "President Zuma is extremely disappointed and concerned over the issuing of a warrant by the International Criminal Court against Colonel Gaddafi. It's unfortunate that the ICC could take such a decision while the African Union through its ad hoc committee has done so much."
An African Union summit this year decided not to carry out warrants of arrest issued by the ICC against African leaders. The ICC, like other international bodies has shown that it is not prepared to work with African governments on a partnership basis. When Gabon, South Africa and Nigeria voted with them for a no-fly zone in Libya, NATO proceeded to bombard Libya and effect an illegal regime change. The AU's efforts in finding a lasting solution in the Libyan crisis were immaterial. In the end, the AU was made to rubber-stamp NATO's actions.
It is in this context that while we congratulate Ms Bensouda for landing this big post, Africa and other developing nations have to understand that like her predecessor Moreno-Ocampo she is entering a straitjacket position, where Africa's interests no matter how she tries, will not be the priority.
He who pays the piper calls the tune. This is Ms Bensouda's predicament. We doubt very much whether she will have the capacity and support from ICC's funders to effect changes that are desirable for developing nations.
It is also important for Africa in particular to know that unless they push for reforms, Bensouda as a technocrat will be working for the interests of the ICC, and not necessarily African interests.
She said so in her acceptance remarks: "But let me stress: I will be the prosecutor of all the states parties in an independent and impartial manner". She added, that the court was "changing international relations forever."
We are not saying that the upholding of the rule of law should not be a major democratic tenet every leader should exercise; and, neither are we condoning crimes against humanity, by any leader.
If Africa shows unity of purpose, then it will be able to give its input on the manner of reforms they think are feasible. Some quarters have suggested decentralising the ICC's operations at country and/or regional level.However, it is the double standards that we decry. When Amnesty International called for the arrest of George W Bush and Tony Blair for war crimes in Iraq and Afghanistan, the ICC did not act. The United States is not a signatory of the Rome Statute, but the UK is. Africa has also shown that it is divided on the issue and does not speak with one voice. If this attitude prevails, the likelihood of the ICC continuing to target Africans will continue.
But the bottom line is that the situation currently prevailing at the ICC works against African interests, and the positions that we get are window dressers to enable powerful nations to do as they wish. The ICC will also be used against a resource-rich Africa.
at 4:57 PM ·
By Jerry Okungu
December 13 2011
Three weeks ago, a Kenya High Court Judge made a ruling that should President Omar Al Bashir set foot in Kenya, the Attorney General and the Minister for Internal Security must arrest him and send him to The Hague to face charges of Crimes against Humanity.
Despite the fact that the court ruling was based on existing Kenyan laws under the new constitution and the fact that Kenya is a signatory to the Rome Statues, sections of the Coalition government were quick to condemn the ruling as insensitive to Kenya’s regional interests and in fact Kenya’s Minister for Foreign Affairs was quick to add that the judgment was incapable of being complied with. To the ordinary person on the street, the Minister was already telling the country that the government was unlikely to obey a court ruling when the time came.
To date, there are chances that Kenya’s Attorney General has filed an appeal against this judgment in the Court of Appeal. This appeal is obviously filed on behalf of one arm of the government that would like to see Bashir a free man in Kenya any time he feels like visiting our country.
Many of us may remember that on the day Kenya was promulgating the new constitution, Bashir was one of the distinguished international dignitaries despite the fact that his arrest warrant was already four years old.
Failure to arrest Bashir speaks volumes about our relationship with the ICC, an international criminal court to which we are signatory. Coupled with the fact that six of our citizens are facing similar charges arising out of the 2007 Pose Election Violence, one wonders how a country that is reluctant to arrest an international fugitive will handle its citizens should the court decide that they will stand trial early next year. Are we preparing the ground for defaulting on the same should the court find that our own Ocampo Six have a case to answer?
Failing to respect the International Criminal Court requirements may be the easier part. It is the consequences of such disregard that may deal a blow to Kenya’s standing in the Community of Nations especially at the United Nations. If you doubt me, ask Malawians what is happening to them after they failed to arrest Bashir when he visited their country last October.
According to a press release released this week, the ICC Pre-Trial Chamber 1 decided that the Republic of Malawi failed to cooperate with the Court by not arresting and surrendering Omar Al Bashir to the Court during his visit to Malawi in October this year.
The Chamber chose to refer the matter to both the United Nations Security Council and the Assembly of States Parties to the Rome Statute.
The Chamber found that there was no conflict between Malawi’s obligations towards the Court to arrest and surrender the suspect and its obligations under Customary International Law. The Judges indicated that this analysis also rubbished the African Union’s position, which the Republic of Malawi relied upon, and which refuses to comply with the ICC’s requests for the arrest of President Al Bashir.
The Chamber, recalling its previous decisions on the Al Bashir case, re-affirmed that “the current position of Omar Al Bashir as Head of a state which is not a party to the Statute has no effect on the Court’s jurisdiction over the present case”. The Chamber also indicated that the Republic of Malawi failed to comply with its obligations to consult with the Chamber by not bringing the issue of Omar Al Bashir’s immunity to the Chamber for its determination, as it was invited to do by the ICC Registry’s note verbale sent to the Malawi authorities on 13 October 2011.
In the December 12 decision, Pre-Trial Chamber I examined Malawi’s observations submitted on 11 November 2011 and considered that Customary International Law creates an exception to Head of State immunity when international courts seek a Head of State’s arrest for the commission of international crimes. The Judges noted that immunity for Heads of State before international courts has been rejected time and time again dating all the way back to World War I. Giving the examples of international prosecutions against Slobodan Milosevic, Charles Taylor, Muammar Gaddafi, Omar Al Bashir and Laurent Gbagbo, the Chamber noted that initiating international prosecutions against Heads of State has gained widespread recognition as accepted practice.
Now that Malawi has been the first country to be reported to the United Nations Security Council, will Kenya merely shrug this development as inconsequential to its case? The United Nations may be a toothless bulldog and may not bite as hard as some other member states I know. However, the mere censor by this international body can have far reaching political consequences. Being censored is tantamount to being cited for lack of respect for a lawful international institution. Coupled with the fact that Kenya hosts one of the largest UN offices on the globe, it would be disastrous if our actions made the world community doubt our sincerity in its institutions.
At another level, two Kenyans have gone to court to overturn Justice Ombijah’s ruling on the basis of his 2005 thesis for his Master’s degree in international law. These two Kenyans would like us to believe that their basic rights to trade wit Bashir will have been fundamentally violated should Khartoum deny them visas to travel to Sudan.
Since promulgating our new constitution, some Kenyans have been taking this rights issue too far. When did Bashir become Sudan and Sudan become Bashir? Must we bend our laws just because two greedy Kenyans want to trade with Sudan at the expense of the Sudanese lives in Darfur? I don’t think so. Kenya is better off obeying international laws which it has domesticated in our statues.
at 4:47 PM ·
By Jerry Okungu
December 13, 2011
Retired Major James Oswago, Kenya’s interim Independent Elections and Boundaries Commission was last weekend in America’s Midwest selling Kenya’s elections to the Diaspora in America on Jamhuri Day.
According to a brief posted on the Kenya Embassy website by our Ambassador in the USA, attendance was quite impressive-over 600 delegates representing virtually every state in the United States were present.
The Kenyan Constitution is very clear on the relationship between our relatives in America. It will empower them to vote just like the Americans and South Sudanese have done in the past. The Americans are allowed to vote electronically wherever they may be all over the globe. Sudanese had their votes cast during the referendum in booths erected by the Sudan Embassy officials and in the case of Kenya, with support from the Kenya government.
The constitution also provides that once the necessary laws are enacted, any Kenyan who might have opted for American or any other citizenship will be allowed to reclaim the motherland’s citizenship without renouncing the citizenship of the adopted country.
As the Retired Major was battling with his fellow Kenyans abroad on the basics of the constitution, he had an opportunity to meet face to face with the Diaspora mindset about Kenyans. According to credible Daily Nation news sources that reported the proceedings almost immediately, Oswago was reported to have been frustrated by some questions asked about the Election Law during the forum where he was supposed to collect their views on the 202 elections.
According to the newspaper reports, he is reported to have lamented that Kenyans in the US had either not read the Constitution or just did not understand what is contained in it. The IEBC Chief Executive was further frustrated by the level of questions asked at the forum in Dallas, Texas during his team’s tour. A participant, for example, sought to know the impact on Kenyans in the Diaspora a requirement in the Kenya Citizenship and Immigration Act of 2011 which provides for a fine of up to Ksh 500,000 and a prison term not exceeding three years for a dual citizen who fails to disclose his newly acquired status within six months. Baffled by the question, Oswago asked the questioner where in the constitution he had read that because clearly the CEO had never seen that kind of clause in the Constitution.
Another area of contention was the suggestion by Mr. Oswago that ambassadors can be used as Diaspora Returning Officers. The forum rejected this offer outright. Two things could have necessitated this rejection. One, it would be costly to the voters. Two, just like in Kenya, the Diasporians are partisan and equally biased. I do not see a G7 supporter trusting that an ODM appointed ambassador would be a credible Returning Officer! The same would apply where a PNU appointed ambassador would preside over the election. ODM faithful would take that with a pinch of salt.
As Oswago was in Midwest fielding questions from Kenyans in the Diaspora, four IEBC Commissioners were with me in South Africa attending the East and Southern Africa Electoral Bodies Forum. In our forum, the issue of how to manage the Diaspora vote for all African countries came up several times. Uppermost in our mind was the daunting task of managing the process of getting the Diaspora to vote.
If you talk to any Kenyans at home, all they know about the Diaspora are Kenyans who live in the USA. You cannot get them to conceptualize that Kenyans living and working in Somalia, the DRC, Uganda, and South Sudan and even in Timbuktu are also Diasporians.
Another mountain to climb is to actually know the population of our brothers and sisters living abroad. Outrageous figures like 3,000,000 have been bandied around from time to time such as the latest Dallas forum. The reality is different. No one, no organization not even the Embassy in DC has any idea how many Kenyans live in the USA. And the reason we cannot get this accurate figure regularly is understandable. Yes, there are many professional and distinguished Kenyans working and doing honest jobs in America and elsewhere on planet earth. Yes, many Kenyans in America and the rest of the world are again rumored to be dispensing millions of dollars every year back home to invest and support their families back home. This figure ranges from Ks 100 million to 600 million a year depending on who makes a speech where and when.
However, there are many, even a bigger number in America that are not accounted for, for one reason or another, doing odd jobs here and there to survive and are therefore reluctant to register with their embassy in Washington DC. As an illegal immigrant in the US, you constantly live with the trauma of a knock at your door when Homeland Security agents come calling. This state of uncertainty makes it impossible for many Kenyans without papers to volunteer information about themselves because you never know when American Security intelligence will scrutinize or even hack the Embassy’s information data base.
Where the IEBC has no accurate figures of Kenyans eligible to vote, how will they prepare voting materials enough for the exercise? Assuming that the Diasporians will not accept the IEBC suggestion that all eligible Kenyans would travel to DC from Alaska, Washington State, North West and Midwest to vote; does the IEBC have the resources to mount polling stations in every state in the USA? And seeing the level of misinformation displayed at the Dallas forum last weekend, is the IEBC in a position and capable of mounting voter education across the 50 states in the USA? And as the IEBC preoccupies itself with the American vote, what will happen to Kenyans in Bellarus, South Africa, the Middle East, Darfur, DRC, Rumbek, Ireland, China and Malaysia?
Knowing that the 2012 is replete with multiple problems even here at home and that even the IEBC does not know when it will conduct elections, can we defer this Diaspora vote to 2017 when the IEBC will have sorted its logistics and resources out? Can we give election problems facing Kenyans at home more attention and deal with the Diaspora issue at a later date?
Saturday, December 10, 2011
at 11:15 PM ·
By Jerry Okungu
UNDP-ECF ELECTIONS CONFERENCE
SANTON CONVENTION CENTER
Johannesburg, South Africa
December 9 2011
Kenya’s security structure as inherited from the colonial government was pretty complex and remains largely the same to this day. We have the Provincial Administration that permeates the entire social fabric that largely served the interest of the colonial governor. It comprised of the village headman, a Sub Chief, Chief, District Officer, District Commissioner and the Provincial Commissioner.
This lineup was complete with its Police Force renamed the Administration Police after independence. The way this outfit served the Colonial Governor is the same it has continued to serve the man who replaced the Colonial Governor at independence- the President of the Republic of Kenya.
We also have the regular Police Force and the Crimination Investigation that primarily deals with law and order at the national level. It also investigates crimes and prosecutes arrested criminals. More often than not, it does not act to prevent crime but deals with offenders after the fact.
We have the GSU- the General Service Unit, a paramilitary police Force whose main role is to deal with riots, public demonstrations on enforce as curfew should the need arise. For years, they have been the most ruthless arm of the Police Force that was deployed to deal opposition party activists and university student riots.
We have the Military Department comprising of Ground Troops, the Navy and Kenya Air Force. Their role is to protect Kenya from external attack. This is the security outfit that is now fighting the Al Shabaabs inside Somalia.
The last category used to be called the Special Branch until it was renamed the National Security Intelligence Service-NSIS. Although its role is supposed to protect Kenya from external forces, it is preoccupied with spying on Kenyans on behalf of the State.
This entire apparatus security apparatus reports to the President of the Republic of Kenya who is also the Commander in Chief of the Armed Forces. Other than the military that has never meddled in politics apart from the 1982 coupe attempt, the rest of the security forces are at the beckon and call of the President and his Cabinet.
They have been deployed many times to intimidate opposition politicians, break-up rallies, arrest those that they consider enemies of the State or generally detailed to rig elections on behalf of the President in power. Daniel Moi used them many times to install himself and his preferred candidates in power. Kibaki used them once in 2007 but unfortunately things went very wrong for him.
With this kind of arrangement, it has been an uphill task for Kenya to have elections free of malpractices and even violence from time to time.
Election violence in Kenya just like in other neighboring countries is a complex issue that has no simple solution. The issue takes different dimensions when one begins to realize the main actors involved.
During election season, one would imagine that Kenyans would gently campaign in rallies without carrying crude weapons or stones to attack opponents with. One would wish for an American or British style of election process where candidates separate personal relationships from political engagements. One would expect that our politicians would bitterly campaign against their opponents but at the end of the day shake hands and go for a drink together. One would imagine a society where political candidates running for various offices would not arm their youths, pay them and literally incite them to heckle or disrupt rallies of their opponents.
The scenario above would belong to utopia if you consider what our politics is all about.
In discussing violence in African politics whether the country is Kenya, Nigeria, Uganda, Tanzania or Zimbabwe, I am reminded of a Nigerian Playwright, one Ola Rotimi who wrote a play in the 1970s called “Our Husband Has Gone Mad Again”. In that play, the lead character is Le Jocker Brown, a retired Military General entering politics. In one scene, he raves and frets about some imaginary opponent trying to oppose his election to Parliament. It is at that point that Le Jocker Brown declares that politics is war. You must employ war strategies to win a political election. You must do all in your power to vanquish the enemy by any means necessary including violent means.
Le Jocker Brown is a typical African politician found anywhere in the continent. In this continent a political opponent is a sworn enemy for life. In some cases this animosity moves from one generation to the next and in some instances this bad blood can translate in to fists fights and at other times in to a full scale war between supporters. We have yet to distinguish between ideological battles and physical combat. Politics should belong to the power of reason and logic not stones, spears and arrows.
Scholars may write tons and tons of research documents on how to rid our politics of violence however, unless we face the real issues of public indiscipline, disrespect for the law and general social disorder displayed by the elite and goons alike, it will be impossible for the police, no matter how well trained or well meaning to deal with violence during elections.
The scenario in Kenya is complicated by a class of citizens known as the untouchables. These are individuals that can commit any crime yet no police officer can arrest them and successfully prosecute them. The reason this happens is because these very individuals have powerful connections in the corridors of power. You can arrest them in the morning and one hour later they have made one vital phone call and someone orders their immediate and unconditional release. These are the people you can actually charge in a court of law and the following day the Attorney General enters a nolle prosequi and the man proudly walks into freedom to continue with his criminal activities.
In Kenya, elected politicians at the level of members of Parliament, City Mayors, Cabinet Ministers and the Head of State are very influential people. This influence is extended to their wives, children and extended family members.
They have access to bank credits, business opportunities, and lucrative jobs in government and even postings abroad as ambassadors. Because they have access to state resources, they have the opportunity to drive the best cars, live in posh homes and access to armed state security- all signs of power and status symbol.
Because of their privileged positions, even law enforcement agencies like the police and judges are scared of them. Dealing with them strictly according to the law can cause someone a job and livelihood.
This class of citizens has grown in stature over the years to the extent that they have created a subculture of their own in which opulence, wastage, social disorder, disrespect for authority and the law has become their way of life.
Because they have the cash to run expensive election campaigns, they are in a position to hire the police, the General Service Unit and the National Intelligence Security Service staff to do their dirty work- collecting information on their opponents. Where the formal security staff is in short supply, they resort to recruiting jobless youths as their private militia or body guards. The hirelings have no problem unleashing terror whenever their boss tells them to do so. In some instances, these local “war lords” can hire both regular police and private militias to work as a team in his project.
Police officers on the other hand find themselves in a catch 22 situation. Whereas they would like to uphold the rule of law, disobeying an order from a powerful individual with connections in the corridors of power can mean a transfer to some remote village in Kenya or worse still loss of the only means of livelihood. However, the reason most police officers become incorrigibly corrupt and violent is the life they lead. In Kenya we have a very demoralized police force, poorly paid, lacking in decent accommodation and in most cases badly lack the tools of trade. Other than the gun which all of them must have, most police officers on patrol actually walk because they don’t have enough vehicles to move fast on the scenes of crime and where they have a vehicle at the police station, chances of having no fuel in that vehicle are very high.
It is these frustrations that have forced the police in to criminal activities and rampant corruption. They engage in these activities because just like other Kenyans, they have financial obligations to meet.
To reinstate the credibility of our police force, we must bite the bullet and look at their frustrations on the face. Our police force need decent pay cheque, a good house to live in, education for their children, medical and life insurance to give them the peace of mind that in the event that they fall in the line of duty, they will have some income to fall back on.
A part from personal benefits, the police must be well equipped with motor vehicles in order to combat crime. They should have two sets of vehicles; the branded ones for traffic patrols and dealing with mob riots and unbranded ones to track dangerous criminals. The police must be educated to work with civilians in order to track perpetrators of violence not only during elections but off election seasons as well. Changing public and police attitude about violence must be an ongoing process.
For any meaningful transformation to take place in the way we conduct our politics, stringent ethics and integrity laws both for the law enforcement officers and political actors must be accompanied by massive public education aimed at attitude change. It is this change of attitude that will dissuade political operators from unleashing violence on their opponents. When we change public perception of politics, they will see the benefits of conducting peaceful elections devoid of violence. And the government should be prepared to make violence more expensive and unattractive.
The only way to do this is to ensure that there are laws that if enforced are punitive enough to discourage would be perpetrators of violence. One way in which violence can be eradicated from our politics is to ban for life those individuals identified as fueling conflict during elections either by funding such activities or directly engaging in conflicts.
Transitional politics or regime change has been with us in Kenya since 1963 when the colonial government handed over power to a democratically elected Kenyatta regime. However, this democracy only lasted three years. After that, the first signs of authoritarianism set in under Kenyatta for the next twelve years.
It was during this period that President Kenyatta consolidated economic and political power into his own hands with frequent amendments to the Lancaster constitution through intimidation and coercion of the National Assembly. It was also during this period that Kenya witnessed the first three political assassinations of high profile popular politicians.
When Kenya became a defacto one party state in 1966, meaningful general elections became untenable. Although subsequent elections were held in 1969 and 1974 before Kenyatta passed on, the elections were choreographed to make sure that Kenyatta, his Vice President Daniel arap Moi and their close associates never faced challenges at the ballot box. They always went through unopposed.
During Kenyatta’s regime, elections were managed by the Director of Elections under the Attorney General who in turn was the President’s appointee.
To manage national elections, the Attorney General used the Provincial Administration and the Police Force to help in managing the process from registration of voters and the campaign period up to the Election Day. The Attorney General in conjunction with the ruling party KANU was responsible for deciding who was fit or not fit to contest elections. Those who challenged their decisions or expressed ideologies at variance with the ruling party were always rounded up by security agents and made to disappear before nomination day to allow the good boys to sail through unopposed.
When Jomo Kenyatta passed on in August 1978, Kenya had been a defacto one party state for twelve years. During that period, the only avenue to elective politics was through an all powerful, domineering and intolerant Kenya African National Union Party that was also headed by the Head of State and his Vice President. So, when Daniel arap Moi assumed the reigns of power IN 1978, he took over the system that President Kenyatta had built for one and a half decades.
The only difference was that he perfected Kenyatta’s authoritarianism and took it to new levels. He dismantled the Attorney General’s powerful office and placed all security agents under the Office of the President. Together with State security apparatus was the Director of Elections. And because there was no freedom of speech even in Parliament, it was impossible to pass meaningful laws that would restore democracy through an elective process.
Once Parliament was in the bag, Moi moved swiftly to the judiciary where he removed the security of tenure of judges and the Attorney General. They would henceforth serve at his pleasure.
So, when Kenya’s Air Force staged a military coup against Moi’s regime in August 1982, it gave him an opportunity to purge the military, opposition voices and discordant voices in the ruling party KANU. Instead he recruited loyalist voices from every corner of the Republic who would sing his tune and chorus witch-hunt campaigns against undesirable elements for either detention or expulsion from the party. Soon after this, he caused the Attorney General to publish a bill in Parliament that made Kenya a de-jure one party state within hours.
With all arms of government together with State Security apparatus under his armpit, the stage was set for one of the most repressive regimes in Africa for the next ten years. All this period, there were no meaningful democratic elections. The deciding factors were National Security agencies comprised of the Provincial Administration, the then Special Branch (now NISS) and of course the local KANU operatives. These were the organs that could measure the loyalty levels of every individual Kenyan who was interested in elective politics or appointment to lucrative government positions.
Even though multi-party politics returned to Kenya in 1992 when Kenya held its first multiparty elections since 1963, there was however no regime change until ten years later when an amended clause in the constitution in 1991 forced Moi to retire from politics ten years later. During this period, there were limited reforms such as setting up an Election Commission whose chairman and all commissioners were still appointed by the President.
It was only after 1997 elections did Moi accept to share the commissioners’ appointment with leading political parties represented in Parliament. However, State security apparatus, the courts and the Attorney General were still very much the President’s Men. During this period, rigging elections in favour of the President became the primary occupation of the State Security apparatus. Little wonder that Moi won two consecutive general elections in 1992 and 19972 despite his massive unpopularity with the electorate.
When Moi realized that he was leaving power in 2002, he tried all he could to impose one of his favorite supporters on the Kenyan people. He looked for the son of Jomo Kenyatta to succeed him. Despite a spirited campaign backed by the Police and the Provincial Administration together with unlimited government resources; he failed in his project and for some strange reason allowed regime change to take place smoothly. During this period, two institutions must take credit for the chaotic but violent free elections.
The army stood by Kenyans and expressed desire to work with whoever Kenyans would elect President. And for the first time, Election Commission of Kenya stood its ground and did Kenyans proud. Civilian power neutralized election riggers and gave Kibaki a resounding victory- 70% to Uhuru Kenyatta’s 30%.
However, though Kibaki is credited with expanded democratic space, the one thing he did soon after being sworn in was to surround himself with power seekers akin to Kenyatta’s of the 1960s and ‘70s. He consolidated the economic, political and security instruments under his office. With the Ministries of Defence and Internal Security under his docket, he was set to use the Provincial Administration, the Administration Police, the Regular Police and the General Service Unit to their maximum. Sooner rather than later, police violence that could only remind Kenyans of the past era was all back in display. Suddenly non-state political operators were compelled to get permits from police stations before holding rallies or demonstrations failing which, the police would disperse them by force.
Under the Kibaki regime, things started going really wrong when the Internal Security minister arranged for strange foreign thugs to raid the Standard Newspaper simply because the Media house had some expose of the new regime. It later transpired that the Armenian brothers who were hired secretly into the country and bestowed with positions of Deputy Police Commissioners were just thugs, international criminals and possibly drug dealers. These were the people the Kibaki regime allowed into the country at a time when Kenyans had high hopes of attaining real democracy and good governance.
On the eve of Moi’s departure from power in December 2002, the new constitution that Kenyans had fought for was about to be ratified at the People’s Constituent Assembly following the completion of the Constitution of Kenya Review Commission. However, because Moi did not want the new constitution to interfere with his anointed heir to the throne, he quickly disbanded Parliament and called for fresh elections.
During the 2002 campaigns, the umbrella coalition parties that would propel Kibaki to power had the new constitution as its main campaign agendum. The coalition promised Kenyans a new constitution within 90 days of Kibaki’s presidency. However, immediately Kibaki was sworn it, the constitution took a back seat with operatives from his side of the coalition detailed to derail it all together. However, a watered down version was to be presented to the public nearly three years later as the document that Kenyans wanted. This was rejected by the main partners in the coalition forcing the pro Kibaki constitution to be defeated at the referendum.
With that development, Kibaki sacked all cabinet ministers of the coalition partner from his government. From then on, the stage was set for the most violent elections two years later in 2007.
Since pre independence elections of 1961 to 1963, the two main political parties that ushered in independence campaigned on the platform of minority tribes versus majority tribes. The Kikuyus and Luos were then seen as the dominant tribes and were feared by the rest of Kenyan tribes.
That was why KADU, the minorities’ party voted to a man to have a federal government as opposed to KANU of Jomo Kenyatta that voted for a unitary government under a strong Executive.
Because of this polarization, the elections in Kenya in 1963 were pretty bloody in which renegades in political zones were lynched in broad daylight. However, because of the strong hold the colonial regime had on security forces these pockets of political violence were contained and reflected the image of political parties rather than that of the national government or its security agents.
The first and only time Kenyatta’s regime used security agents to rig elections was during the 1966 Little General Elections after falling out with his Vice President then- Jaramogi Oginga Odinga. At that time the Provincial Administration was used to deny the KPU party licenses to hold rallies and to disqualify KPU candidates from the General Elections using all manner of excuses.
However in 1975 Kenyatta used the Police, Intelligence Agency and the Provincial and District Commissioners to deny not only the opposition licenses but to also bar populist KANU members of Parliament such as Mark Waithaka and J M Kariuki from campaigning publicly during the 1784 elections. Whereas Mark Waithaka won elections while in prison, J M Kariuki was voted back to parliament in a landslide in that election only to be murdered three months later. Parliamentary Commission set up to investigate JM Kariuki’s murder established that he was murdered by state security agents with the full knowledge of the President, Attorney General and all those that were close to Kenyatta then. No action was taken against all those that the report recommended for prosecution.
At the dawn of the new multiparty era in 1991, there were fresh politically motivated violence in Rift Valley, Nyanza, Western and Coast Provinces. As Moi was going to face his first multiparty election in 14 years since assuming power, suddenly there sprouted a militia group known as the Kalenjin warriors that demanded that all other tribes living in Rift Valley must go back to their original ancestral homes.
Although many innocent Kenyans were either speared to death or shot with poisoned arrows, no arrests or prosecutions ever took place. The conclusion was that their activities had tacit approval from the highest office in the land that also enjoyed the position of Commander in Chief of the Armed Forces.
Despite the Kiliku Report that investigated the 1991-2 political violence, Kenyans had to see a repeat of the same ethnic violence during election seasons in 1997 and 2002 with still no investigations, arrests and trials of suspects carried out in Kenya’s courts of law.
Because of these precedents that had gone unpunished, it was normal that if the elections went really wrong in 2007, violence would erupt only that nobody expected the scales of destruction and loss of human life to reach the proportions we witnessed.
Whereas the majority of Kenyans thought they would improve on the 2002 democratic gains, top officials in the Kibaki regime had other ideas. They were not ready to see Kibaki defeated at the polls by opponents he had sacked from government just two years earlier. More importantly they were not prepared to see Kibaki go home after just one term. And being Kibaki’s men and women from Central Kenya, they left nothing to chance. It was at this point when they arm-twisted Kibaki to replace all retiring Election Commissioners with friendly individuals that would ensure his reelection.
As the elections heated up towards the end of 2007, the National Intelligence Service collected useful information that indicated that whichever party won, there was bound to be violence in most parts of the country. The NIS report pinpointed political hotspots such as Nakuru, Eldoret, and Kisumu and to some extent the Coast region. It was simple; if Kibaki won elections, other tribes would not accept it. If Raila Odinga won the vote, Kikuyus who were in power would not accept the outcome.
To prevent an outright win by the opposition, the Minister for Internal Security chose in his wisdom to recruit 3000 Administration Police Officers as election agents for the President’s party- PNU. However, when the plan leaked to the press, the story changed that the Admin Police were merely to keep the peace at polling stations. What let the cat out of the bag was that these “peace keeping” deployments were only sent to Nyanza, Rift Valley and Western Provinces- the opposition strongholds.
This decision by the PNU regime to deploy the Admin Police as its election agents heightened tension all over the country with opposition strongholds forming militias to guard polling stations so that rigging could not take place. Those Admin police officers that were identified in some areas were summarily lynched or just beaten up and chased away.
So, by the time the chairman of the ECK was announcing that Kibaki had won the elections with a small margin and a hurried swearing in done within thirty minutes, the whole country was charged. Within minutes of the swearing in the President at 7pm on December 30, 2007, the whole country erupted in an orgy of violence.
With Elections for President disputed, it would have been natural to go to court and challenge the election for Kibaki. However, the Kenyan Judiciary at the time, just like the police force, could not be relied on for fair arbitration. It would obviously uphold the results as announced and PNU knew that. And so when violence persisted and even escalated beyond the imagination of the government, there was panic. The first reaction was to suppress the riots any means necessary. In no time riot police were deployed in opposition strongholds to beat, maim and even shoot rioters to death. These shootings mainly occurred in Kibera slums, Mathare slums, Naivasha, Nakuru, Eldoret and Kisumu.
As the riots multiplied and escalated, police orders to shoot to kill took their toll on Kenya. After two weeks of continuous rioting, the police were overwhelmed and had to seek support from other security agents. This was when the military moved in not to kill rioters but to disperse them and clear the major highways that had been barricaded by the rioters.
More importantly as ethnic lynching escalated with reprisal killings in Naivasha following the killings in Eldoret, it was important that the army moved in to escort to safety those people that had been displaced on account of their ethnicity.
At the end of it all, a combined operation of the Admin Police and the Regular Police had shot to death at least 50% of all the people who had lost their lives during the 2007 post election violence.
When it was all over, there were no police investigations, arrests or prosecutions of those that had carried out the looting, arson or murder. To this day, no single rape case has been prosecuted even though women who were raped knew and could identify their assailants, most of them police officers in uniform.
An interesting case in Kisumu where a police officer was caught on camera by an international journalist chasing an unarmed 15 year old youth then shooting him at close range then kicking his lifeless body came to nothing when the officer was brought to court. Camera footage notwithstanding, the officer was acquitted for lack of evidence! To this day, he has not been charged again.
A part from the Kiliku Parliamentary Commission that investigated the 1992 politically motivated ethnic violence in 1993, Justice Akiwumi had to do the same following the 1997 election violence. So when Justice Waki Commission revealed the details how election violence was planned, executed and the aftermath, Kenyans began to accept violence during election seasons as a way of life and that unless punitive corrective measures were taken, it would be difficult to eradicate the culture of impunity which had become deeply rooted in Kenyan politics. It is best remembered that since 1975 when the third politically motivated murder of JM Kariuki was investigated by a parliamentary commission, no action had been taken on these reports not even that of Foreign Minister Robert Ouko murdered in 1990 and the subsequent 1992 and 1997 election related ethnic violence.
As Kenyans expected, they assumed Justice Waki would release his report on the 2007 post election violence to the President who in turn would hand it over to the Attorney General for burial in its final resting place among the others before it.
However, when Waki handed the report to President Kibaki and Prime Minister, he withheld a vital envelop containing names of prominent politicians that were involved in planning the atrocities and crimes against humanity. It was this single act by one Court of Appeal judge that changed the equation. It is the reason we have six Kenyans facing trial at the ICC Court in The Hague.
Why have Kenyans been violent generally during elections? It is because for years, they have suffered
- An all powerful presidency that was not ready to share power either with Parliament or the Judiciary
- Unfair and unequal distribution of national resources and state finances for infrastructure development
- Ethnic bias in the recruitment of state jobs
- Discrimination on the basis of ethnicity
- Unfair land ownership in a country where millions don’t have a burial ground
- A failed and discredited Judicial System
- A compromised Parliament
- A compromised National Security apparatus that had turned on its own people it was supposed to protect
- A deeply corrupt government system that had over the decades impoverished its own people
In Kenya the situation has been like this before a new constitution came into place:
- The President is the Commander in Chief of all Armed Forces including Prisons Department
- He appoints ministers of Defense and Internal Security together with their assistants and Permanent Secretaries. They all have their offices in the Office of the President
- He appoints all army Generals and Commandants, the Police Commissioner, the Admin Police and General Service Unit Commandants
- He appoints all the eight Provincial Commissioners and 250 District Commissioners who are also Security Committee chairmen in their respective Districts and Provinces
- The President also appoints the Directors of Criminal Investigation and National Intelligence Service that also report to him directly
- The President also appoints all judges of the High Court and Court of Appeal as well as the Attorney General and the Director of Public Prosecutions
With this scenario, it was difficult to have a legal system that would go against the wishes of the President in power. It was the reason the police never investigated election related crimes and those who were taken to court were acquitted for lack of “sufficient” evidence.
Because non-state actors in politics realized that they could not get protection from state owned security agents, they recruited their own for their own personal security and to encounter state brutality during election seasons. In this regard, the following private militias have sprouted on the Kenyan scene since 1992, the year Moi predicted that multi party politics would bring back ethnic violence:
- The Kalenjin Warriors of Rift Valley believed to have belonged to President Moi and his kitchen cabinet
- Mt. Elgon Land Freedom Army fighting for their land in lower parts of South Rift Valley
- The dreaded Mungiki militias of Central Province fighting an economic war against wealthy Kikuyus
- Jeshi la Mzee of Nairobi area during Moi’s time
- Kizungu Zungu and Chikokoro gangs that operated in Kisii parts of Nyanza Province
- Angola Musumbiji gangs that operated in Western Province
- Coast Republican Party, a militia separatist group that operated in the Coast region
- Baghdad Boys of Mathare slums
- Artur Brothers that were imported from Armenia to cause chaos in Kenya
Because the government was running its own set of gangs from the Police Force that from time to time carried out extra-judicial killings of innocent Kenyans, it was difficult for the government to curb the growth of other non-state gangs. Ironically when the government operatives needed to deal with the opposition leaders, they would employ the services of some of these gangs a long side the regular police.
Kenyans, mainly non-state actors struggled for almost three decades to get a new constitution and to restore governance and democratic practices that would salvage their nation from the abyss of political pit-hole they had found themselves in.
The 2007 post election violence left a bitter taste in the mouths of many Kenyans. The aftermath of the death of 1500 innocent Kenyans half of which perished at the hands of police brutality made Kenyans resolve that time was ripe for a new constitution and far reaching political, social and economic reforms. We had to rethink our governance practices.
Because of the trauma of post election violence of 2007, it was easier for political foes to reach compromises and usher in a new constitution that was finally promulgated at a colourful ceremony in August 2010.
With this new constitution came sweeping changes in our governance structure. The office of the President was stripped of powers to appoint state officers. Such powers the constitution vested in Parliament to avoid future abuse of office by the Presidency.
The Provincial Administration was abolished and replaced with elected County governments to be headed by governors and deputy governors complete with their regional assemblies. These Countries would in future receive 15% of the National Budget to run their own governments.
Parliament also received a second chamber, the Senate that would primarily deal with resource distribution to the County governments. It would also have the powers to impeach a sitting President.
The constitution also fixed a date for General Elections that would fall on every second week of August every five years. The President would therefore not have a say when elections would take place. This move effectively gave the National Assembly its calendar.
The constitution also elevated the position of Vice President of the Republic to that of Deputy President making future vice presidents have security of tenure for at least five years rather than serve at the pleasure of the President. For that matter, future presidential candidates were compelled to choose their running mates that would end up being their deputies once they won elections.
In the Attorney General’s office, the constitution split that office and created an independent office of Director of Public Prosecutions such that the Attorney General would only remain the Chief Legal Advisor to the government. The DPP would prosecute all cases without any reference to the Attorney General.
In the cabinet, the posts of Cabinet Ministers and Permanent Secretaries were abolished. Instead the constitution trimmed the size of the Cabinet from 42 to not more than 22 and renamed them Cabinet Secretaries that would in future be vetted by Parliament before their appointments.
It was this area that was most abused by the last three presidents because they used such positions to influence votes from various communities.
The constitution also gave Parliament wide powers to vet all state employees and only those individuals that passed integrity test and parliamentary public hearings would be appointed.
The constitution also merged the Regular Police with the Admin Police to form the Kenya Police Service with one Inspector General at the head and a Police Service Commission as the authority to report to. This means that future regimes would not be able to misuse the Police for their own political ambitions. A long with this the entire Police Service would be structured afresh with top officers vetted before being reemployed.
In the Judiciary, the constitution created another layer of the judicial system by creating the Supreme Court of Kenya above the current Court of Appeal with the Chief Justice as the President of the Supreme Court. Also created was the post of Deputy Chief Justice and five other Supreme Court Judges. The constitution also mandated that all sitting judges and magistrates would be vetted by the Judicial Service Commission before being readmitted to the service.
The vetting of judges and the Police Force was one way of saying that corruption in the Judiciary and the Police Force, especially the investigation and prosecution agencies had to be dealt with.
With a more professional Judiciary and State Security Agencies in place, it was hoped that criminal activities that went unpunished would be a thing of the past in Kenya’s electoral process.
The Creation of a new electoral body- The Independent Election and Boundaries Commission
Part of the reason why elections over the years were riddled with violence and corruption was because the Executive appointees to the Electoral Commission were too weak and powerless to act against the excesses of the state. They had no security of office entrenched in the constitution. They were handpicked by the Executive, hence the temptation to please the appointing authority.
According to Justice Johann Kriegler Report of 2008 that analyzed the electoral problems in Kenya in 2008, it was noted that most of the problems emanated from an inefficient and out of date Electoral team that lived in the past when the rest of the world had moved on. Technologically, they were barely literate to be able to exploit new management tools available to such bodies worldwide.
Following the Kriegler report, Parliament disbanded the body and replaced it with a care-taker Commission that successfully conducted at least 20 by-elections and one national referendum over the last four years flawlessly. Since then, a fresh and permanent Electoral Commission has been set up through public vetting by a special committee set up by Parliament. After short-listing and public interviews, the final qualifiers were subjected to further Parliamentary Committee hearings after which the successful candidates were presented to the President and Prime Minister for appointment. As its name suggests, it is independent of any faction or operative from any arm of government.
During the elections, it will be responsible for vetting candidates, publishing rules of engagement and will be in control of security staff seconded to them by the state. It will definitely not succumb to state intimidation as its authority is vested in the National Assembly and the Constitution.
Incidentally, the Kenya Armed Forces were not adversely affected by changes in the new constitution because they were largely never in the spotlight on cases of corruption or violence against civilians.
With these changes already taking place, it is hoped that future elections in Kenya will be secure from unnecessary and wasteful violence
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