Kenya’s Nigerian Future – By Ben Rawlence

Uhuro Kenyatta and William Ruto whose combined Presidential ticket was enabled by a watering down of the 'Leadership and Integrity' bill, despite the pair's indictment by the International Criminal Court.

“˜Never again!’ blared Kenya’s radio stations in the heady days of 2008, when the blood of the victims of the post-election violence was fresh on the streets and politicians scrambled to negotiate the coalition agreement. One of the centerpieces of that agreement was a new constitution: a clean sweep, the final curtain on the colonial era, as though erasing a century of historical injustices were as simple as writing a new charter, creating more public offices and setting up a Truth Justice and Reconciliation Commission. As the March 4, 2013 elections approach, those hopeful chickens hatched during the hastily agreed and drafted constitution are coming home to roost and Kenya’s political landscape is beginning to resemble another country that placed much faith in new devolved constitutions: Nigeria, now on its fourth since independence.

Throughout 2008 and 2009, Kenyans were routinely disappointed by the government’s thwarting of every attempt to deliver justice for the victims of the violence, by the slowness of resettlement and assistance for internally displaced people, by the failure to reform the police and the delays in establishing the Truth, Justice and Reconciliation Commission.

Finally, in 2010, the new constitution, passed by over 60 percent of the electorate, seemed like a piece of good news. It set out a leaner executive, stipulated that cabinet members could not also be MPs, guaranteed a nominally independent judiciary, embedded a requirement for police and land reforms into the text, barred indicted suspects of serious crimes running for office and created a new administrative structure based on counties with their own legislature, governors and tax raising powers. A Senate would also serve as a check on the lower house.

Following the promulgation, there was widespread optimism and hope for a change of tone. But the moral force of the document barely survived into the next year. By 2011, the normal dynamic of Kenyan politics had reasserted itself: police reforms stalled, judicial reforms resulted in no new investigations or prosecutions into the previous polls, MPs awarded themselves another grotesque pay rise and the first signs of trouble erupted in Isiolo and Moyale on the border with Ethiopia in November of that year.

Members of the Borana and Gabra communities had read the runes of the constitution and correctly perceived the new Marsabit county – with Isiolo at one end and Moyale at the other – as a prize worth having. Their traditional rivalry over pasture, livestock and political patronage assumed a whole new urgency. Whoever had control over the coming Marsabit county government and the governorship would have a whole new level of power over revenues, security and dispute resolution. 20 people died in the fighting and around 7,000 were displaced.

Away from the headline politics of shifting alliances within the Nairobi political elite, 2012 saw a frighteningly violent turn in many areas as minority groups woke up to the realities of the new political dispensation. More power and more money at the local level meant new ethnic arithmetic. The sudden irruption of more offices meant a whole new field of competition, with dramatically higher stakes.

Across the more sparsely governed areas of Northern, Western, Eastern and Coastal Kenya, centralized power of a county in the hands of one governor offers enticing possibilities for enrichment of one man and his gang (of the kind that the country has seen effected at the national level by Messrs Kenyatta, Moi and Kibaki). The possibilities for disenfranchisement for those left out are huge. Wherever a county does not contain a convincing majority from one ethnic group, or wherever the majority can be effectively challenged by a coalition of minorities afraid of being excluded, violence can be expected. This is why the solidly Kikuyu counties of Central province are immune from competition, and why the mostly Kalenjin central Rift and the Luo, Luhya and Kisii parts of rural Western Kenya are quiet so far. On the other hand, the ethnically diverse cities of Kisumu, Nairobi and Mombasa are hotspots, along with Coast, the North, and areas of the Rift Valley where the Kikuyu and Kalenjin populations have a level of parity (Kuresoi, Nakuru and Molo).

In February 2012 more fighting broke out in Mandera county on the Somalia/Ethiopia border between the Degodia and Garre clans with 40 dead and tens of thousands displaced. Clashes continued through July and August as rivalry over Mandera North constituency intensified and the Murulle became drawn in too.

Then, in August, tit for tat strikes between the Pokomo and the Orma escalated and Tana River County became a blood bath. Even after extra police were deployed, further attacks were perpetrated in September, December and January leaving an estimated total death toll of over 160 and 13,500 displaced. In a multi-sided contest involving the Tana River County senate and governor seats as well as a dispute over access to the Tana River from Ijara constituency, Omar Godhana MP, Danson Mungatana MP and Defence Minister Yusuf Haji fielded allegations of their involvement.

Although many of the fights in the Northern deserts and semi-arid areas are ostensibly about grazing, cattle and cattle rustling are an important factor in fundraising for political campaigns and rewarding youth for violence. It is in this light that the shocking November attack in Baragoi in which 45 policemen attempting to recover stolen Samburu cattle were slaughtered by Turkana warriors should be seen. The exact details are unclear, but three Turkana MPs, including two ministers, were questioned by police after defending the killings on television.

While the police were either uninterested in preventing or complicit in allowing violence in Tana, in Baragoi they seem to have been co-opted by one side. Partial policing was a feature observed in the post-election violence in 2008: in Kisumu and Nairobi police shot hundreds of rioters, many in the back, whilst in Naivasha and Nakuru, Kikuyu Mungiki mobs were left to do their worst against Luo and Kalenjin victims. In the absence of serious police reforms (and the coalition government has shown no urgency), this is the future: a national force prey to the same ethnic, political and organized criminal influences as politicians. If parliament is the premier spot from which to rob the public purse and obstruct economic activity for one’s own benefit, then the police force comes a close second.

As Kenyan politics has become even more ethnically polarized under Kibaki, minority groups without national alliances with big men from other communities risk being marginalized completely. In such a context it is no wonder that they might begin to seek other means of political empowerment.

The Mombasa Republican Council is, in this respect, ahead of the curve, and perhaps a forerunner of things to come. They have declared that there shall be no election in Coast province, for, they argue, “˜Pwani si Kenya’ – the Coast is not Kenya, according to a colonial era memorandum of understanding, which promised a referendum on the membership of the coastal strip within an independent Kenya after 50 years. Time’s up, they say. After 50 years of marginalization and the perennial grabbing of coastal land by up-country politicians on behalf of their ethnic constituents, the MRC has lost faith in the Kenyan political system, and thousands of indigenous Coast inhabitants belonging to the Mijikenda collection of tribes are heeding their call not to register to vote and even to prevent the election from taking place.

The MRC is, arguably, the only genuine grass roots social movement in Kenya. It enjoys popular support in all 20 Coastal districts, and raises money in mosques and churches every Friday and Sunday. If it were a political party it would likely sweep the province. Countless visitors to their Mombasa headquarters, including me, have advised them to eschew violence and to turn their movement into a political party. “Everyone advises us that,” the Council told me, “But every politician we have sent to Nairobi over the last fifty years gets bought as soon as they arrive. Nothing can be achieved in parliament.”

They have a point. The cases currently before the ICC were only referred after parliament failed three times to establish a special tribunal to try the cases domestically amidst allegations of large sums of money being paid to all sitting MPs. And when the package of legislation to implement and operationalize the constitution was sent to parliament by the Commission to Implement the Constitution it included a “˜Leadership and Integrity’ bill that specified the requisite qualities to run for high office. After allegations of corruption again, the bill was passed in August but gutted of the provisions on wealth declaration, vetting by state agencies and publication of pending criminal cases. The way was clear for Uhuru Kenyatta and William Ruto to run. A court case attempting to revise the language of the bill to its former state is ongoing but the plaintiffs are facing threats.

Add to this depressing picture the prospect of oil in Lake Turkana and Kenya’s first flash of Muslim-Christian violence in November when a Nairobi mob attacked Somalis in Eastleigh following one of the (now routine) blasts by suspected al-Shabaab militants, and you have a political scene that looks very Nigerian.

Like Nigeria, whose economy is also growing at a good clip, Kenya will have regional governors who command hefty shares of local revenues and who behave as kingmakers in their area supported by gangs of thugs and politically connected businessmen. At the national level, politicians dole out contracts amongst themselves whilst, locally, mobilizing half-interested populations in campaigns of hatred against whichever scapegoat is most convenient. Witness then, Uhuru and Ruto’s bizarre campaigning on a platform of anti-Luo feeling to distract from the violence they allegedly fomented against each other’s ethnic group last time.

Turnout in recent elections in Nigeria has gradually shrunk to shocking levels; in many places in 2007 nobody voted at all and in 2011, the result was a foregone conclusion. This time in Kenya, through a mixture of active disruption (in Coast and Dadaab), bureaucratic incompetence, and fear, the Independent Electoral and Boundaries Commission (IBEC) has only registered around 65 percent of the electorate, undermining the poll’s credibility. Meanwhile, the Kenyan press is awash with gossip about meetings between elders in marginal districts hammering out deals on governorships and county seats, even before polling has begun. As the formal political process collapses under the weight of money and cynicism, it makes sense that real negotiations will happen elsewhere. In such circumstances the question will soon arise, why bother to vote at all?

Ben Rawlence worked on Kenya from 2008-2012 for Human Rights Watch. He is the author of “˜Radio Congo: Signals of Hope from Africa’s Deadliest Conflict.’

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8 thoughts on “Kenya’s Nigerian Future – By Ben Rawlence

  1. Idont agree with most opinions expressed here, am a kenyan and most of the incidences your mentioning are still under investigation, there is still not yet an authoritative finding on any of them, i just wonder where you`r getting your conclusions.Secondly as i have just learned you work with human rights watch,i will like to know where you get your information because it seems like youre fed on information from the so called kenyan civil society who have been on a decline since Raila odinga entered power.Most of the conflicts youre talking about have been there since independence, you seem to make copy paste argument of Nigeria to Kenya on religous secterianism.For your information since kenya`s incursion in somalia more than a hundred churches have been attacked here in kenya by alshabab symphatisers yet christians havent revenged because its understood that these are criminals out to drive a wedge between christians and muslims.Am sory but i think you made your conclusions without refrence to supporting facts,there are many good things happening in kenya than you`d have us think.

  2. I live in Kenya and follow the civic and political evolution very keenly. I think the analysis is overly symplistic. I think that the speed of social and political change is as key to change as the change itself. If post election justice went too fast there could have been a shock that the country may not have absorbed. Most societies in the world that have sustained social change have gone as fast as their slowest memebers; particularly if their slowest members are a sizable group. In a sense there is nothing wrong with bringing as many people as possible on board in supporting social change.

    Change in kenya can only be assesed temporaly and sptially. There are no absolute good speed or bad speed.

    1. Temporal. We are probably at the best place we have ever been in terms of sustained peacebuilding. Will there be deaths in the next elections. Yes. Will the state fail.No. After the next elections we will come out stronger because of the new independent institutions we have put in place. Inthe short term it is abviously scary. In the longer time we may be sitting quite pretty.
    2. Spatial. In the region tribe or religion causes instability. Kenya is probably the only country that is developing a method of dealing with tribal and religious discrimination. Other than gender balance, regional (read tribal and religious balance) balance is a contitutional requirement in job allocations and resource distribution. Poorer regions get more resources. All these key provisions are outside the power of the executive. The current president has tried to overplay his powers and the courts and legislature stoped him.Kenya also brought power sharing to africa…. and now negotiated democracy. In potnetial hotspots popular parties are ansuring minorities get el3ctive positions without competation. Spatially we are also the most tolerant. A court in the costal town of mombasa alowed a woman to women marriage. Prostitutes and gay people have demostrated for their rights in Nairobi. The state hasundertaken a census of gay people in Kenya. Sharia law is part of the Kenyan constitution despite the fact that moslems are less than 20% of the Kenyan population.

    We are in a good longer termperpectived place despite daily hiccups.

    If we are comparable to Nigeria then I can only say Nigeria in in a good longer perspective place.

  3. Jeffrey Maganya, all good points about the strength and vibrancy of Kenya society – where Nigeria is also similar… The provisions in the constitution are also positive, on paper, and will have some effect in practice no doubt over the longer term. The comparison with Nigeria is even stronger here I think, where the law is frequently resorted to and has some force albeit within political constraints: the law is one tool in a field of competition where other factors are also at play. Kenya, like Nigeria, seems to be moving to a more complex, messy kind of governance where, yes, the state may not fail, but it will be a much more adaptive thing.

  4. Kenya and Nigeria: Apples and Oranges?
    Comparisons are obviously a tricky thing to do; it is worse if one attempts a comparison of oranges and apples when the focus is on why apples are not as round as oranges. Nigeria and Kenya have many similarities, but they too are vastly different countries. Any analysis that does not state that in advance is at its core very flawed.

    True, the political architecture envisioned in the Kenyan constitutions mimics in some ways the Nigerian architecture. True also, there have been massive failures for Nigeria in terms of realising the objectives that the constitution set out to meet. Kenya is also experiencing similar constraints in implementing its constitution. But the levels of resistance between Nigeria and Kenya differ fundamentally. What is the key reason for these failures?

    Certainly the socio-economic and political environments are a good starting point for any explanation. What did the framers of the two constitutions set out to do? What were the forces organising to realise or stall the process and objectives of constitution-review or constitution-making process and how were they balanced in the ensuing struggles? And was the environment for the realisation of these objectives supportive or disruptive of the process and objectives? Should I throw in South Africa to illustrate the vast differences and feasible results built into the environment and process and how they explain differences between countries including that between Kenya and Nigeria?

    Let us give Africans some space to breath and analyse their experiences not on the basis of outsider expectations but on the basis of the realities unfolding within knowing very well that the realities have context. Surely, Kenyans were not a naive people. I need serious evidence to illustrate the claims that attribute to Kenyans unrealistic expectations of the constitution-making process. For instance, where is the evidence to buttress the claim that “One of the centerpieces of that agreement was a new constitution” and that that meant “a clean sweep, the final curtain on the colonial era, as though erasing a century of historical injustices were as simple as writing a new charter, creating more public offices and setting up a Truth Justice and Reconciliation Commission?” When did this kind of highly pejorative and disrespectful reinvention of Kenyan expectations qualify as good analysis of local Kenyan realities?

    Let me concede: it is possible that my peasant father in Lubinu had excessive expectations from the constitution review process; but would it be fair for me to rush into the deep American South to generalise on American judgements on race?

    Is it also fair to make the claim that the Kenyan constitution was “hastily agreed and drafted.” Or am I missing something? I just finished reading Peter Kagwanja’s biography of Kiraitu Murungi and I have previously reviewed Willy Mutunga’s Constitution-Making from the Middle. Indeed, I have read several of Yash Pal Ghai’s writings and PLO Lumumba’s thoughts on the process. I see anything but haste in their description. If there is anything that one should say about the Kenyan constitution, it is that it took very long to negotiate and equally long to agree on a final document. It is written that more than three quarters of its content was agreed upon easily. The so-called contentious issues were few and more about the interests of the elite negotiating rather than in the design of the structures.

    Can one talk about and compare the Kenyan and Nigerian constitutional architecture without a serious engagement with the nature of the elite in the two countries? I do not think so. And with such an analysis of the elite, it should not sound very surprising that “the moral force of the document barely survived into the next year” in Kenya. Such a statement is a truism of sorts if one has carefully followed the Kenyan process. Why? Because a whole range of interests tried and failed to prevent or stall agreement and the promulgation of the constitution. It is normal for the same forces to reconstitute to continue to stall or reverse the implementation of the new constitution as a continuation of the process of securing their own interests that are threatened by the new architecture. Did this not happen in America especially when important Supreme Court decisions were stalled, postponed and ignored as states came to terms with the new dispensation?

    To present the cases where implementation is disrupted without also including cases where implementations has proceeded in spite of the resistance is to craft a very pessimistic reading of the political process in Kenya. True, the new constitution has unleashed some serious problems around electoral boundaries and representation. However, analysts who have an eye for only these never confuse me since, as Maina Kiai writes in the Saturday Nation 12th January 2013, there have been areas of positive advancement. / Maina Kiai identifies three areas where devolution is making a positive difference. And had I not read him, I would have been unnecessarily depressed by Ben Rawlence’s post. Let me cite.

    If Ben Rawlence has issues with “creating more public offices,” Maina Kiai argues that “the increase in elected positions from three to six is leading to deeper thinking about the qualities required for various positions.” Second, he writes that there is “a trend to move away from established professional politicians for Governor.” Finally he concludes that there is “the increasing questioning of the “suit” method of voting that favours tribal kingpins, and which has been most damaging to Kenya’s fledgling democracy.” Clearly, these are positive trends that are threatening to the status quo and can easily be a reason for violence in some regions.

    There are many more aspects of Rawlence’s analysis that need context for them to be an adequate depiction of the complex Kenyan political processes as we head to elections. I cannot get into those now as field work in different places of the country is a more engaging undertaking for now. But just to say that what I heard from Kenyans in Nakuru on Thursday 10th January 2013 as I interviewed them on cattle rustling and other topics is a lot more complex. Kenyans are not the naive lot that Rawlence’s attribution suggests. I hope that our friends and supporters abroad will have the courage to continue supporting us but to respect the fact that we are unwilling to conform to their expectations of how we should live our realities.

    Godwin Murunga

  5. Godwin Murunga makes many good points, especially about the positive aspects of the constitutional implementation raised by Main Kiai that may have an impact over the longer term. I hope very much that they do. Of course the positives must be balanced alongside the negatives in any academic analysis of the constitution. But in so far as the political field is concerned, and that is what we are talking about as the elections approach, the central point here is based on a close analysis and personal experience of election violence in Nigeria in 2007 and Kenya in 2008 and 2012, and that shows very similar patterns of violence rooted in devolved political systems where, to an extent, it appears that the devolution itself has framed the stakes and upped them.

    It is also true that the constitutional issue has been much deliberated in Kenya over many years but the final version of 2010 and the fact of its inclusion in the National Accord were born of the post-election violence and framed in that political context with the expectation that devolution would ‘share the wealth’ of public office and dilute the ‘winner takes all’ culture. Regardless of what happens in the long term, it is fair to say that, based on what has already transpired, with over 400 dead from localised political clashes in 2012 according to the UN, those expectations were misplaced.

    In that regard also, let me say that Murunga has misunderstood me if he thinks I was (disrespectfully) ascribing to Kenyans at large the expectation that the constitution would be a panacea – the sentence refers to the coalition agreement: the agreement was unrealistic.

    Of course the two countries are different. But it is instructive to set them alongside each other in their relative experience of devolution . More context and an examination of elite bargaining in Kenya and Nigeria would be great. If this article prompts further research in that direction it would be a good thing.

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  7. i been going to kenya since 2006 on holidays 2 times per sees to be be a less and less friendly place. its stuck in some time gap of undevelopement. they seem to have great belief in their new found oil and going by nigeria its nothing but trouble. the mess of mombasa amazes meand that silly likoni ferry . did the ever think of painting any place.kenya is a failed state and no leader that i can see is going move it out of its mess.its got 600,000 illegal weapons and millions with no work or an hope of work.i tried doing business there also and they were so backward to full of dreams in their heads,,in kissii they are still break stones on the side of the road by hand as like 200 years ..too many problems for anyone to solve in kenya then again the bar is very low..foreigners are not in love with safaris and hustlers anymore.cheers mike

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