Ellen Sirleaf-Johnson, President of Liberia

Liberia’s recently concluded referendum in which all of the government’s propositions were defeated should be the impetus for a serious look at an overall revising of the Constitution. The original American “settler” constitution of 1847 was the de facto law of the land until the “revolution” of 1980 which brought Samuel Doe and his People’s Redemption Council to power in an extremely bloody coup. The extrajudicial murders of the members of the Tolbert government on the part of Doe were so heinous that their new Constitution has clauses which make it illegal to consider retroactive prosecutions. The innocuous wording for this escape clause reads:

No court or other tribunal shall entertain any action whatsoever instituted against the Government of Liberia, whether before or after the coming into force of this Constitution or against any person or persons who assisted in any manner whatsoever in bringing about the change of Government of Liberia on the 12th day of April, 1980

The fact that the current government has allowed this article to stand says volumes about many of the people who are still in power. The fact that the current and accepted Constitution has language that validates the murderous People’s Redemption Council as a legitimate government is simply in bad taste considering the level of suffering they subsequently inflicted upon the nation.

Other aspects of the Constitution are equally troubling. Take its racialist description of who can be a citizen:

In order to preserve, foster and maintain the positive Liberian culture, values and character, only persons who are Negroes or of Negro descent shall qualify by birth or by naturalization to be citizens of Liberia.

In the 21^st Century, language like this in not only appalling but reflects a complete lack of confidence on the part of Liberians that they could maintain control over their own country if foreigners (Lebanese, Chinese and Indians in Liberia’s case) were given citizenship and did not have to resort to deceitful marriages of convenience which is the current practice. There are other legislative ways that property rights can be managed, and a major overhaul of the land tenure system is to be wished, but to restrict citizenship to “negroes” is  untenable, since that is a flimsy concept and firmly rooted in the ‘settler’ mentality that most Liberian’s would like to escape. Modern genetic science would also put the whole designation into a legal limbo.

Other restrictive clauses in the Constitution discuss who can be President and where they should come from.

The President shall be:

- the owner of unencumbered real property valued at not less than twenty five thousand dollars; and
-  resident in the Republic ten years prior to his election, provided that the President and the Vice President shall not come from the same County.

The fact that a poor person cannot be President does not say much for Liberia’s notion of what a Democracy is. But it is the second of these items which caused such a stir in the last referendum. If taken seriously almost all of the existing 16 or so candidates would be disqualified. This is why the Sirleaf government urged a change to 5 years. Her pleas went unheeded so lawsuits, if not a full-blown constitutional crisis, looms.

Why candidates cannot come from the same county is also a mystery. Would it make that much difference if they came from two towns that lay just across county borders?  The mind boggles, but it probably has something to do with traditional spoils and patronage systems rather than a search for parity.

Another anti-democratic element in the current Constitution which is a direct hold-over from settler practices is the one that states:

The President shall nominate and, with the consent of the Senate, appoint and commission

a) cabinet ministers, deputy and assistant cabinet ministers;
b) ambassadors, ministers, consuls; and
c) the Chief Justice and Associate Justices of the Supreme Court and judges of subordinate courts;
d) superintendents, other county officials and officials of other political sub divisions;
e) members of the military from the rank of lieutenant or its equivalent and above; and
f) marshals, deputy marshals, and sheriffs .

Points a, b and c are pretty standard but what about the rest? Essentially this allows for national executive control down to the city hall level throughout the country. In its defence, the Sirleaf government has made noises about allowing elections across the administrative spectrum but cites money as the reason it has not acted. Why it feels it needs to micro-manage the army and the national police is not so much a mystery as it is a reflection of ‘big man’ politics, only in this case it’s the ‘iron lady’ Sirleaf who is making all these selections. Crying poverty in order to avoid implementing democratic practices may ring true at the World Bank and IMF, but how can Liberia’s bi-lateral partners, not to mention the UN and EU, continue to support such reluctance?

The fact that only about 32% of the electorate turned out for the voting, many citing poor knowledge of what it was all about as their reason for staying home, does not bode well for a decisive, well-run Presidential election in a couple of weeks. The fact that the issue of term-limits was not even broached, an issue that many Liberians in fact care about, suggests the self-serving nature of the referendums on the part of the current government.

The National Election Commission, the body charged with running elections, has already embarrassed itself mightily by not bothering to have a proofreader take a look at the galleys of the ballots before they were printed in Denmark. (Why they had to be printed in Denmark and not in Liberia is another matter.)

The resultant error gave the people a choice between ‘age 75 or age 75’ as the retirement age for Supreme Court Justices. It’s not exactly clear how people were able to vote on this topic but the NEC said ‘no worries’, their error did not affect the outcome? How could it not?

More worrying than the foibles of the election commission are credible threats of violence coming from several quarters. Large caches of weapons have been found along the border with Cote d’Ivoire which is just recovering from its own brand of election violence.

It has become such an article of faith that the elections in Liberia will be violently contested that the President has been rumoured to be asking for a contingent of ECOWAS military and police personnel to act as additional peacekeepers on top of the 10,000 plus UN troops already on the ground. (No mention was made of using the Liberian military – which is just as well as apparently their US funded training has not been going well.)

Opponents of the President are crying foul and describe it as illegal. Her supporters say it is legal under the terms of the peace agreement. The one place where an issue like this should be resolved is in the national constitution but about this, as in so many other highly critical issues, it is silent.

The people of Liberia need their voice.

Michael Keating is a Lecturer in International Relations at the University of Massachusetts Boston with a special interest in the Mano River countries of West Africa.

He can be reached at:  michael.keating@umb.edu

There is a renewed interest in a new constitutional order in Kenya. A bad constitution is blamed for the post-election crisis, allowing the president to pack the electoral commission with his cronies shortly before the election; a largely unaccountable electoral commission declaring presidential election results without proper counting or reliable records; enormous powers vested in the office of, or illegally appropriated by, the president; the centralisation of power in Nairobi; the lack of public participation; the lack of autonomy, effectiveness and legitimacy of state institutions, particularly those for accountability and justice, principally judges, police, prosecution and the attorney general; opportunistic political parties and unprincipled politicians; and resulting corruption and wide scale impunity.

People often ask: would Kenya have been a better place today if the “Bomas” draft had not been sabotaged? This essay argues that a good constitution, while critical, is not equivalent to constitutional order. Enactment of a constitution is distinct from the adherence to its values, institutions and procedures. A constitution by itself makes no difference. Kenyan society determines the extent to which the constitution will be observed, manipulated, or disregarded, and therefore the extent to which constitutional reforms will have meaning.

The notion of a constitutional order is broader than merely the text of the constitution. It represents a fundamental commitment to the principles and procedures of the constitution and therefore emphasises behaviour, practice, and internalisation of norms. A central feature is the depersonalisation of power. Power belongs to state offices, not to individuals, however exalted. The purpose for which power must be used and the mode of its exercise are set out in the law. The holders of even the highest state offices are subject to the law, not above it. This aspect of constitutionalism has proved extremely hard to realise in Africa—where public office has its own aura, and expectations of the people merely encourage the whimsical, or capricious and biased, exercise of state power.

Most elements of the framework of constitutionalism are unacceptable to those who gain access to state power, for they interfere with their primary objective of accumulation. This has been the essence of the Kenya experience. Constitutionalism has been rejected, and constitutionally sanctioned power has been exercised or abused in the name of ethnicity but in practice deployed for personal aggrandisement. The politics of the ‘Bomas’ process demonstrate this rejection of the values of the constitution: a professional phase where independent experts consulted with the people in accordance with national goals and prepared a draft constitution, and a deliberative and consensus-building phase with the representatives of the people, regions/communities, and civil society, were followed by a parliamentary phase where, against logic and democracy, politicians had a veto. It was illogical because all the Members of Parliament (MPs) were automatically members of Bomas where they had ample opportunities to have their say and to persuade others of the rightness of their positions. It was undemocratic because MPs could override a decision of a much larger, and more democratic and legitimate body than Parliament. While the ‘Bomas’ process afforded Kenyans for the first time ever the chance to decide on the values and rules by which they wished to govern themselves, politicians held a narrow interest in the constitution, focusing on access to state power, and their own personal prospects of securing that access. During the Bomas, most politicians, including ministers, about half of whom barely ever entered Bomas, showed little interest in human rights and social policies, including environmental and land policies. But they were passionately opposed to popular participation in and controls over the exercise of state power. They had little time for fair administration and public accountability of state officials.

As the analysis in the Waki Report on Post Election Violence in Kenya so vividly demonstrates, the process of accumulation cannot easily be secured within the parameters of a democratic constitution through mechanisms and procedures for accountability. Indeed the point that emerges with sharp and sad clarity is that it is only by constant and systemic violations of the constitution and the law that this political class is able to accumulate and establish its control over society—and its opponents. The horrendous consequences of these violations are graphically described in the Waki Report: corruption, institutionalisation of violence, the extensive use of militias, and the loss of the state monopoly of force (with weaknesses and divisions in state security forces). In particular the Report emphasises the role and prevalence of violence in Kenyan politics and society. It attributes many failings of the state to the personalisation of power in the president (and with it the absence of the separation of powers). The economy has become closely intertwined with state patronage and ethnic politics, and leads businesspeople to become architects of violence, and to collude in other violations of the law. There is little accountability for the exercise of public power. Impunity for the friends of the regime and for compliant state officials is rampant—and indulged despite public outcry. All these demonstrate the absence of the rule of law. The way successive presidents have misgoverned Kenya is proof that these violations are in fact the norm.

Serious consequences follow from this, not least the loss of state legitimacy. The state is not perceived as a social and political force for the common good. It is regarded, accurately, as partisan, throwing its weight behind specific communities and interests. The subordination of the electoral commission, the police, and the judiciary to the executive has resulted in their inability to resolve national problems, though this is why they are set up, with independent powers. The police are particularly singled out by the Waki Commission for their failure to ensure Kenyans’ security, and consequently are held responsible for numerous murders, rapes, and the displacement of the people. They are no longer able or willing to protect the people against violence and plunder by private and politically sponsored militias. The judiciary is so discredited that no one believed that it was capable of impartial adjudication of election disputes. The Waki Commission doubts the veracity of the statements of the attorney general about his attempts to enforce the law. The Waki Commission concludes, “Over time, this deliberate use of violence by politicians to obtain power since the early 1990s, plus the decision not to punish perpetrators, has led to a culture of impunity and a constant escalation of violence”. The government and politicians have not only sanctioned violence, but they have also ethnicised politics and violence. Consequently the state has failed to perform functions intimately connected with the exercise of public power, indeed major reasons why we establish a state in the first place.

Despite the emphasis placed on constitutional reform by Kofi Annan, other eminent Africans, Kenyans and the international community, there is no guarantee that many of the reforms proposed by them and the Kriegler and Waki Commissions will help to get Kenya out of the hole in which successive regimes have placed it. I have said enough to indicate how vested interests, among politicians, businesspeople, and the bureaucracy will sabotage reforms (as they have done ever since Kenya’s independence). Despite the ravages wreaked upon the state, it still remains the primary means to accumulate wealth and power—and those who are in control of it will fight to maintain their control, regardless of the rules of the constitution.

It is hard to provide the answer to this dilemma, that the very sponsors of reform are its principal saboteurs. What we know is that constitutionalism cannot be willed; it must be established by deep commitment and sustained activity. The constitution cannot achieve anything by itself: like Marx’s commodities, it does not have arms and legs. It must be mobilized, acted upon, used, etc. This idea is also expressed by Granville Austin (2000), in his monumental study of the working and impact of the Indian Constitution, in which he says that a constitution, however living, is ‘inert’. A constitution does not work, it is worked. He says his book is ‘about those who acted upon the Constitution, how and why they did so, and about those the Constitution acted upon, or neglected. It is about Indians working their Constitution…’

One way to understand the potential of a constitution to impose its imprint on state and society is to examine two key factors. One is internal to the constitution, and the other, external (society). The internal concerns the ways in which the constitution distributes power, the institutions it sets up for different tasks, modes of accountability, and methods for the enforcement of the constitution, including respect for and protection of human rights. The balances within the constitution can do something to guide state institutions and empower the people. It is safe to say that constitutions may succeed in setting up institutions and giving them authority, but they often fail in the fulfilment of national values or directive principles—for the paradoxical reason that those who accede to these institutions may have little commitment to the values. It is interesting to note in this context that at Bomas, politicians paid almost no attention to values, but were obsessed about institutions—knowing well that if they got hold of institutions, they would be able to ignore values. As we know, most African constitutions contain excellent values and procedures, but, for the most part, they have failed to produce excellent states. In Kenya, even the essential pre-conditions of a constitutional state are missing: an independent judiciary, honest electoral commissioners, absence of impunity, policies that are inclusive, the rule of law—and most importantly, ethical and moral standards in public life. These difficulties are compounded by many unresolved historical injustices.

They have failed in substantial part because of the second factor, which is external to the constitution, namely society. The constitution operates within society and seeks to influence its development. The distinguished Indian sociologist, Andre Beteille, believes that a constitution can provide directions for the national development and self-realization, but whether, and the pace at which, the development takes place depends on society. The constitution may set out guidelines for the exercise of power and the aspirations that the state must fulfil. But society also affects the constitution, sometimes pushing policymakers to uphold the principles enshrined in the constitution and sometimes negating those principles. I have already indicated that in Africa we have placed unjustified reliance on the capacity of the constitution to influence society. I have also indicated that the political order intended to be set up by the constitution competes with other models and realities—and in the end it is society that determines the extent to which the constitution will be observed, manipulated, or disregarded.

The African constitution not only fails to mould civic values or the behaviour of key political actors, it also fails to generate a state that is capable of sound social policies and fair and honest administration. Andre Beteille’s brilliant insight needs to be supplemented by a consideration of the obstacles to progress placed by the inherited, pre-constitution bias of the state apparatus. Perhaps inadequate attention has been paid to these obstacles, as opposed to societal obstacles, because it is assumed that the constitution, par excellence, designs and structures the state. However, as I have mentioned above, it may structure institutions, but may fail to infuse them with values and principles. The constitution tends to structure macro institutions but often says little about values and procedures of the administration of the state (which may persist from one constitution to another).

The implication of this is that political reform has to go beyond the constitution. It is one thing to make a constitution. It is quite another to breathe life into it, making it a living, vibrant document which affects, and hopefully improves, the reality of people’s lives. A living constitution is one that citizens use in their daily existence, that governs and controls the exercise of state power, and promotes the values and aspirations expressed in it.

For these reasons, implementing a constitution is not about this or that provision, or even the totality of the constitution, important as these are. It is about the inculcation of a culture of respect for and discipline of the law, acceptance of rulings by the courts and other bodies authorised to interpret the law, giving effect to judicial decisions, acceptance of the limits on the government, respecting and promoting human and collective rights, the participation and empowerment of the people. Ultimately the people have to be guardians of the constitution.

Professor Emeritus Yash Ghai chaired both the Constitution of Kenya Review Commission and the Kenya National Constitutional Conference (“Bomas”). His areas of research and publication include public law, ethnic relations, autonomy and federalism, human rights, comparative constitutions, and sociology of law. He has taught at the Law Faculty of a range of universities including the University of Hong Kong University and Uppsala University, and been a visiting scholar in Harvard and Yale.

In 2005-2008, Prof. Ghai was the Special Representative of the UN Secretary General for human rights in Cambodia.

Kenyans are very suspicious of the rare unity between the Cabinet and the Parliament as they jointly dismiss calls for the prosecution of the perpetrators of post-election violence atrocities. This unscrupulous behaviour is not coincidental, but a well crafted strategy: the Cabinet and Parliament are distorting facts on the requirements for a local tribunal, in order to escape accountability. Politicians are satisfied that they are now sharing the spoils and that it is business as usual. They prefer to push the issues that contributed to the crisis under the carpet in order to focus on efforts to capture power in 2012. While we commend the Kenyan government for renewing efforts to enact the Special Tribunal to try those responsible for the 2007 election violence, we believe that nothing short of momentous symbolic shock therapy to the political elite would incentivize formation of an effective, independent and impartial Tribunal locally. Here, we believe the International Criminal Court (ICC) continues to have a major role.

In order to expose the devious political maneuvering of the Cabinet and Parliament in opposing the enactment of an effective, credible and independent local Tribunal, we note that there is tremendous improvement on the current Bills being debated by Cabinet compared to the ones defeated in Parliament in February 2009. We are happy to observe that the current Bills, which we have seen and scrutinized substantively, reflect the recommendations of the International Center for Policy and Conflict (ICPC) and other civil society groups.

Following demands made by civil society groups on how to ensure independence and credibility of the Tribunal, major progress has been made: for instance, the Constitution Amendment Bill 2009 (amendment of section 3A of the Kenyan constitution) protects the Statute and the Tribunal from constitutional challenge, and ensures that the majority of judges, as well as the prosecutor, registrar and investigators, are foreigners. The Special Tribunal Statute and the bodies that it establishes respect human rights including the right of suspects to a fair trial; they observe principles of equality and non-discrimination and the issue of retroactivity (section 77) and time limitation do not apply. Where any law is in conflict with the Special Tribunal Statute, the Tribunal provides that the provisions of the Statute shall prevail: no Act, including an Act to amend the Special Tribunal Statute, may alter any decision of the Tribunal or relieve any person of any penalty imposed by the tribunal; no executive act, whether under the authority of current Constitution or any other law, may alter any decision of the tribunal or relieve any person of any penalty imposed by the tribunal, except as provided by the Special Tribunal Statute; and that No Kenyan Court including the High Court of Kenya shall interfere with proceedings or the work of the Tribunal (section 60). Further, the bills provide that no powers under sections 26 (Attorney-General), or 27 – 29 (Presidential Prerogative of mercy and pardon) shall be exercised with respect to the tribunal; independent funding shall be provided; and watertight victims’ and witnesses’ protection will be provided. Moreover, the Tribunal has the primacy and exclusive jurisdiction powers on all matters relating to post-election violence atrocities; the president does not enjoy immunity under section 14 (Protection of President in respect of legal proceedings during office) Finally, The Bills define the crimes, address individual criminal responsibility, command responsibility, and resignation of the suspects from public office.

With these provisions, it is our view that a Special Tribunal with major international representation is the best option for justice for the victims of violence and preferable to a transfer of jurisdiction outside of Kenya.

Regrettably, the enactment of the Tribunal has begun on the wrong footing, failing the most basic test of its independence and credibility. The Cabinet is turning into a hub of impunity, horse trading in the full sight and knowledge of the two principals, President Kibaki and Prime Minister Odinga. Kenyans strongly condemn the Cabinet for allowing political considerations to block the raising of the bar of the Special Tribunal in order to meet the mandatory international standards. It is our expectation that the Cabinet and Parliament will act in a sense of sobriety and responsibility in the pursuit of national goals and objectives. No efforts should be spared in confronting their insidious game of self preservation at the expense of the wheel of justice and accountability efforts against impunity. Kenyan legislators are among the highest paid in the world; the least they should do is to deliver quality legislation. Their ability to deliver an effective Tribunal should be the test of their legislative competence.

We believe that bringing the perpetrators of post-election violence and gross human rights violations to justice will contribute greatly to preventing future human rights violations in Kenya. However, the fragmentation and absurd protection rackets in the Cabinet and Parliament are likely to be the single biggest impediment to the crucial exercise. For this reason, we emphasize that the ICC and Special Tribunal are not mutually exclusive but rather complementary: if the local tribunal is not enacted as seems increasingly likely, the ICC should pursue the prime suspects. If the Tribunal is enacted, the ICC should still continue its monitoring role, as Kenyans do not want ‘show’ trials; they want fair trials. The Tribunal cannot bring justice to the thousands of post-election violence victims if it tries only a handful of the most notorious individuals, while scores of top officials and other prime suspects remain free. No court, including the proposed Tribunal, should fall short of the international standards which the Kenyan government is bound to uphold. The ICC must bear the burden of responsibility in ensuring that all the international standards that form the basis of other international and mixed criminal processes are explicitly incorporated in any process of accountability for Kenya.

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Ndung’u Wainaina is Executive Director and Pamela Chepneg’etich is Assistant Programme Director at International Center for Policy and Conflict.

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Judges deal in fear, pain and death. However exercised, judicial power has a tremendous impact on the socio-economic, political and cultural systems of a nation. Kenyan masses remain alienated not merely by the foreign language and condescending demeanor of courtrooms but also the centralization of justice. Consequently, we must ask: is the quality of justice determined by the performance of an incumbent occupant of a judicial position? If so, who should appoint judges? What is to be done when the actions of a politically partisan Chief Justice cow an entire judiciary to bow to executive whims?

These questions have come to focus among the Kenyan legal fraternity following recent appointments of High Court Judges in April 2009: Joseph Nyamu and Alnashir Visram gained appellate status; Chief Magistrates Aggrey Muchelule and Maureen Odero and Senior Principal Magistrate Florence Muchemi became judges; as did Abida Ali-Aroni, former chair of the Constitutional Review Commission, and Said Chitembwe, Cooperation Secretary of The National Social Security Fund. Rife speculation and intense lobbying ensuing among prospective candidates re-opens the old debate regarding deficiencies afflicting the appointment process. As legal power is derivative of judicial power, the Law Society of Kenya (LSK) at its 2009 Annual General Meeting passed three resolutions. First, the LSK proposed the establishment of transparent criteria to guide the Judicial Service Commission (JSC) in its recommendations of suitably qualified individuals. Second, the LSK resolved to recompose the JSC so as to include two of its own members. Third, members mandated their Council to petition President Kibaki to convene a tribunal to inquire into the conduct of the Honourable Chief Justice Evans Gicheru whom they consider unfit to hold that lofty office. Such radical stance is predicated on the grounds that the Chief Justice is perceived to have directly compromised the independence of the bench by centralizing justice and by swiftly swearing-in President Kibaki for a second term, thereby precipitating the degeneration of widespread post-election violence.

In justification of LSK’s first resolution, the common law training and JSC’s confidential appointment criteria lends loyalty to the President as appointing authority and should be reformed. Repeal of jury-trials in 1967 and gradual replacement of lay magistrates both Africanized and professionalized the judiciary. The constitutional qualification of appointing judges with at least 7 years of legal practice effectively standardized the culture of appointees to persons assimilated into middle-class values who are not only well-connected among lawyers but also politically and ethnically representative. Recently, a Ministry of Justice task force suggested that the minimum qualifications be raised to advocates of 10 and 15 years standing for high court and appellate judgeship respectively. No mention was made to institutionalize gender-parity, ethnic or religious balance considerations reflected in recent appointments. Given Kenya’s volatile post conflict heterogeneous society, there is clear need for broad political and ideological diversity. To secure the appearance of justice, it is not sufficient to merely resolve disputes objectively, according to primary rules prescribed in advance. Our constitution must also ensure that laws are democratically made. John Rawls’ justice as fairness therefore encompasses tolerating subjective values which condition experiences perceived by the most vulnerable social classes. Significantly, the Kenyan struggle for independence from colonial rule was waged partly to remove a sense of injustice emanating from the appearance of a discriminatory judicial system which restricted Supreme Court access to minority Whites only. One alternative would be to take the path of the US and elect judges; however, such a process promotes political acumen over constitutional interpretation. A middle ground could work in Kenya; requiring parliamentary vetting of proposed nominees.

In answer to LSK’s second resolution, criminologist Clive Walker would argue that the vital role of judiciaries is to guard against majoritarianism and its crude impact on individual rights and unpopular minorities. Human rights violations are primarily caused by the criminal justice machinery. Adjusting public perceptions of the JSC currently constituted by the Chief Justice, an Appellate Judge, the Attorney General, the head of the Public Service Commission and a High Court Judge, may restore public confidence in our courts. Reconstitution of the JSC may widen the pool from which potential judges are selected so as to include liberal judges.

The LSK’s third resolution aims to dislodge Chief Justice Gicheru ostensibly partly for rendering opposition candidate Raila Odinga’s genuine post-2007 election complaint, fait accompli which ultimately contributed to over 1000 deaths and the forcible displacement of 350, 000 people. Further complaints against the Chief Justice include the fact that in early 2007, he directed that all cases lodged to question administrative action, be heard exclusively in Nairobi, requiring all up-country litigants had to travel to the capital city and engage expensive lawyers. This is unconstitutional. Obviously, every judge has equal powers to hear any dispute. In February 2009, following a two year stand-off, the Chief Justice suddenly but sullenly reversed his irrational decree thus re-diverting judicial review cases to their original locations. Yet much damage was already done. He has inflicted irreparable hardship on up-country litigants who were alienated from obtaining prerogative orders during the post-election violence. Further, the Chief Justice declined to allocate any judge to listen to the LSK’s application challenging his illegal centralization order. Instead, policemen tear-gassed protesting lawyers inside Nakuru courts. In retaliation, Mombasa practitioners boycotted pro bono services traditionally rendered in capital murder cases. Yet in reality, even LSK’s three resolutions preferring incremental “quality control” through apparent piecemeal constitutional amendments preceding the awaited real maximalist overhaul, are conservative. Such interim reforms represent well-intentioned attempts to circumvent anticipated political obstacles presented by contentious comprehensive constitutional review issues.

While the Chief Justice may not be personally responsible for the reality of corruption and bribery in our courts at individual magisterial or para-legal levels, his leadership personifies the appearance of the judicial institution as a whole, yet he publicly dismissed the new Grand Coalition Government’s plan to compel judges to sign performance contracts, as unconstitutional. Nonetheless, members of his Kikuyu ethnic group within the LSK published a double page advertisement in the Daily Nation seeking signatures defending the Chief Justice’s security of tenure. His track record? Since appointment to the bench in 1982 Justice Gicheru has delivered one memorable judgment. His dissenting ruling in the 1994 case of Republic v The Post on Sunday where to this credit, out of seven appellate judges he disagreed with the government’s attempts to silence a publisher through contempt of court. That case ironically involved an editor, Tony Gachoka’s, allegations that the then CJ, Zacheus Chesoni, received a Kshs. 30 million bribe from Goldenberg Scandal architect Kamlesh Pattni. An unfortunate precedent was subsequently set by the Kibaki administration in 2003 which forced the resignation of Gicheru’s predecessor Chief Justice Bernard Chunga for his association with the infamous Nyayo House torture chambers during his reign as the Director of Public Prosecutions. Gicheru subsequently appointed an ad hoc Committee into Judicial Corruption chaired by Judge Ringera to conduct a purge. In October 2003, 18 High Court and 5 Appellate Judges, 82 magistrates and 142 subordinates resigned upon being publicly named and shamed in the Report. Following this “radical surgery,” Ringera’s majority decision in the Njoya case deflated the Bomas Draft constitution which threatened devolution of Kibaki’s power. Worse still, on the eve of the 2005 national constitutional referendum, the Referendum case instead validated the executive-driven “Wako Draft New Proposed Constitution.”

The failure of the judiciary to cope with election petitions has led former UN Secretary-General Kofi Annan to act as our receiver-manager. Former Justice and Constitutional Affairs Minister Honourable Martha Karua, in a scathing attack on the judicial corruption conceded that appointments are predicated on favouritism, cronyism and incompetence. Upon her swift rebuff by the President’s mysterious appointment of 7 new judges recommended by a conservative JSC, she resigned in a huff. The president unceremoniously trashed all three LSK resolutions. Now, a Truth, Justice and Reconciliation Commission has been established to supplement the failed judiciary, alongside a range of other prosecutorial arrangements. The legal profession should urgently provide a lead not only on how to deal with real intransigent institutions and apparent individual impunity so as to inspire accountability and personal responsibility in the attitudes of incumbents but also to infuse real transparency into our structures.

Charles Khamala is an advocate of the High Court of Kenya, and has been a practicing lawyer since 1994. His research interests include international criminal law, human rights, criminology and jurisprudence. He is currently a Ph.D. Candidate at the University of Pau (Private Law).

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It is not often that participants in ethnic cleansing confess to it openly, but William ole Ntimama has managed it twice: in a 1996 interview, and more recently. The brazenness of the impunity is revolting: it is natural to want accountability and reform, and equally natural to think we can have both. This, unfortunately, is a bit of a farce: stable reform and calling the violent to account are incompatible. The key is to see that the main strand of political violence in multiparty Kenya is unified by a stable and clear set of aims: majimboism, understood to mean the Kenyan form of exclusive ethnic federalism which finds its most fervent advocates in Rift Valley Province’s political class. In the 1990s, the violence was driven and supported by the majimboist-controlled state; it didn’t require mass mobilisation. 2007 was a genuine departure because the extent and intensity of majimboist violence demonstrated that communal mobilisation for violence is an effective substitute for state support. The beneficiaries have no incentive to give it up, and every incentive to avoid the consequences of past violence by holding onto power. Since their participation is necessary for reform, we can have either reform or accountability but not both.

My first job is to show that despite appearances (diversity of actors) the violence was actually unified in aim. The argument is simple: Rift Valley province is the centre of political violence in multi-party Kenya. The easy metric is deaths: even in 2007, when the violence is supposed to have been much better spread, 65% (744/1133) of recorded murders happened there (Waki: 309). We’re now eighteen years into the violence: it has broken out intermittently since 1991. Prolonged violence of this sort – locally-specific, ethnically-targeted, lethal, and carried out by a number of coordinated small groups – is organized and backed by some sort of ideological structure. That follows from the fact that most unplanned violence is difficult to start or maintain, tends to be brief, and is usually non-lethal (Collins 2008: 14-16). The exceptions to the rule of brevity (for small-group violence) occur where:

either (a) the fight is highly circumscribed, so that it is not really “serious,” or it is clearly understood that there are safeguards to limit the fighting; or (b) the type of exception described by the expression “hitting a man when he is down” (although the victim may well be a woman or a child), where in effect there is no real fight but a massacre or punishment (Collins 2008: 16).

Repeated bouts of this kind of sustained lethal violence require planning and preparation; planning and preparation for violence require coordination and justification, and hence institutionalisation. The justification is fairly clear: a middle-aged man interviewed by Al-Jazeera in Kibera, and Jason Kosgei in the Christian Science Monitor, gave almost identical answers: the violence was to end state-backed Gikuyu domination, which had begun with Kenyatta and never ended. As Lynch 2008 reports (Lynch 2008: 567), a significant portion of Kalenjin backed the violence, and have fairly specific reasons for doing so. Those reasons aren’t significantly different from those reported in Multiparty Politics in Kenya: In 1992, Biwott promised that non-Kalenjin trading licences would be revoked, and Lotodo demanded that all Gikuyu leave West Pokot (Throup and Horsnby 1998: 543). Then, as now, the immediate aims of the violence — to remove non-Kalenjin from the Rift Valley, and to place the remainder, if any, in a subordinate and dependent position –were clear.

The state did outsource violence in the 1990s; much less so afterwards. Why? In the face of the state’s significantly increased capacity for repression (Branch and Cheeseman 2008: 20), why was the violence so much worse in 2007? And why was violence was much better controlled in the 1990s than it was later? Most analyses of the violence have proceeded by identifying the actors, on the reasonable assumption that pinpointing the actor is a good proxy for pinpointing the motive. Going directly to motives, however, has some explanatory advantage: it promises informative answers to each of those questions.

Susan Mueller’s The Political Economy of Kenya’s Crisis may be the most comprehensive analysis of the underlying causes of the post-election violence. Her argument is pretty much that three factors – privatized, diffused, extra-State violence; ethnic clientelist parties; and the high-stakes prize of the Imperial Presidency – conjoined (with a very close election) to blow things up in 2007. The obvious response is to ask why nothing similar happened in 1997, and why all the factors she mentions are structural: the explanation, as given, would still work if the agents were switched. Every factor she lists was present then – if anything, the Presidency was even more imperial, the ethnic clientelist parties even more intensely ethnocentric. Yet there was relatively little violence around election time in 1997: most of the violence came well before or well after polling day. In particular, the announcement of the results in 1997 – results which in several cases were known to be entirely fraudulent – passed without incident.

This lack of specificity leaves the analysis less compelling than it might be; nowhere more so than her analysis of the state’s cession of its monopoly of violence. It is one thing to observe that the state outsourced violence; quite another to ignore the fact that the first Kibaki administration sought, very crudely, to re-establish the monopoly of violence. It is more accurate to attribute the cession of the state’s monopoly of violence to the Moi state – the state in the hands of the majimboist faction. That move – appeal to the motives of the faction in control of the state, rather than the state itself – explains why the state acted so differently either side of 2002, and it offers a direct explanation for the state’s choice and method of outsourcing violence. Moi’s outsourcing of violence in the 1990s is often explained as a pragmatic choice: irregular gangs and militias are untraceable; in employing them, the state got its extra-legal coercion done while minimizing its exposure. This is utterly unconvincing. A quick flick through the Akiwumi report demonstrates that civil servants openly participated in the violence. Nicholas Mberia – then the District Commissioner in Kericho – and 29 APs in his command violently evicted tenants from Buru farm on the morning of 13 December 1993. Not long after, he was promoted to Provincial Commissioner, Rift Valley Province. Several witnesses to the evictions in Enoosupukia testified that the Narok County Council wildlife ranger Johnson ole Punywa shot dead three residents. He too was later promoted. (Klopp 2001: 496). If the point of outsourcing violence was to conceal the state’s hand, then the state made a fearful mess of it. It’s likelier that the outsourcing of violence was driven, at least in part, by ideological motives – the drive to weaken and personalize the centre of the state, while strengthening the majimboist periphery.

Branch and Cheeseman account for the upsurge in violence by appeal to elite fragmentation. That’s a necessary rather than a sufficient condition. Remember that what’s wanted is an answer to why the violence crossed a certain threshold – why it escaped control of the state. Without an underlying capacity for violence, elite fragmentation need not have violent consequences, and it certainly need not have consequences so violent that the state struggles to control them. Appeal to a generalised diffusion of violence is nearer the mark, but it still underdetermines the quality of the violence in the Rift Valley: if elite fragmentation were sufficient to explain the escape of the violence from state control, then that would have happened in more than one place. It didn’t so, it isn’t. Capacity for violence matters; appeal to majimboist motives is sufficient to predict it.

After nearly 20 years or so of intermittent ethnic violence with zero consequences, with and without state support – and since much of the Kalenjin political class (and William ole Ntimama) is on board with the violence – it is difficult to avoid the conclusion that the violence has communal approval and support (Lynch 2008: 566-7; Ashforth 2009: 16). Some significant proportion of Kalenjin opinion leaders outside the political class – the rural middle classes, in particular – have been radicalised. That has been a necessity: when the violence had state support, it did not need communal mobilisation, and there was no need for the ideological backing. Absent state support, communal backing is necessary: the violence has become more ideological as it has become more popular. The balance of power is such that Kalenjin opinion leaders who support ethnic violence, and the majimbo project which justifies it, lack effective internal constraints.

The view that majimboist violence is driven by elite incitement is false: rather, majimboist aims are now widely popular outside the political class, and are captured by it (Ashforth 2009: 18-19). Majimboists willing to resort to violence are well-mobilised because they’ve had to be: without state patronage, the fervour of their cause has had to cover for the organizational goodies the state would have brought. The underlying strategy of reform-by-coalition-government in Kenya is to get the big beasts of the political jungle into government, so that they’re all bought into the new constitutional order. If they are to feel invested, they must be free to manoeuvre; for majimboist politicians, that freedom of action is directed, as it must be, to avoiding accountability for the violence. There can be no new constitutional order without majimboist involvement; since most of the violence has been in majimboist areas, accountability and reform are incompatible.

*Dr. Daniel Waweru is the Chief Editor of KenyaImagine

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BIBLIOGRAPHY

Adam Ashforth (2009). “Ethnic Violence and the Prospects for Democracy in the Aftermath of the 2007 Kenyan Elections.” Public Culture, 21(1): 9-19.

Shashank Bengali (2009). “One year after the massacres, Kenya’s runners reflect.” The Christian Science Monitor, February 25, 2009 <http://www.csmonitor.com/2009/0225/p25s11-woaf.html> (8 July 2009).

Bill Berkeley (1996). “An Encore for Chaos?” The Atlantic Monthly, February 1996. <http://www.theatlantic.com/issues/96feb/africa/africa.htm> (08 July 2009).

Randall Collins (2008). Violence: A Micro-sociological theory. Princeton: Princeton University Press.

Commission of Inquiry into Post Election Violence (2008). Report of the Commission of Inquiry into post-election violence (“Waki”). October 15 2008. <http://www.dialoguekenya.org/docs/PEV%20Report.pdf> (08 July 2009).

Jacqueline Klopp (2001). “Ethnic Clashes’ and Winning Elections: The Case of Kenya’s Electoral Despotism.” Canadian Journal of African Studies, 35(2): 17.

Gabrielle Lynch (2008). “Courting the Kalenjin: The failure of dynasticism and the strength of the ODM wave in Kenya’s Rift Valley province.” African Affairs, 107(429): 541-568.

NTV Kenya (2008). “William ole Ntimama War Monger or responsible minister?” 24 July 2008. <http://www.youtube.com/watch?v=dLIM9gPHq5s> (08 July 2009).

David Throup, Charles Hornby (1998). Multi-party Politics in Kenya. Oxford: James Currey.

Akiwumi Judicial Commission of Inquiry on Tribal Clashes (1999). Report of the Judicial Commission appointed to inquire into tribal clashes in Kenya: Rift Valley. Date of publication unclear. <http://www.scribd.com/doc/2204752/Akiwumi-Report-Rift-Valley-Province> (08 July 2009).

This article is part of a debate organized by Oxford Transitional Justice Research (OTJR) in collaboration with Moi University (Eldoret) and Pambazuka News. A selection of essays based on this debate will be published in an edited volume by Fahamu Books. For PDF documents of the debate please go to www.csls.ox.ac.uk/otjr.php.

Nineteen months have passed since Kenya’s contested 2007 election, when the rapid re-inauguration of President Mwai Kibaki heralded an outburst of post-election violence – characterised by targeted attacks on ethnic ‘others’, an overzealous state security response, and retaliatory attacks on ‘aggressor’ communities – which left over 1,000 people dead and more than 350,000 displaced. The violence ended in February 2008, when a coalition government was formed, but ‘deep peace’ remains elusive and reforms unlikely. What is left is only rhetoric differentiating this administration from post-Mau Mau amnesia and investigative committees without reforms, as after the ‘ethnic clashes’ of 1991-1993.

Bloated, divided, racked by corruption scandals and lacking a clear policy agenda, the coalition’s response to the immediate humanitarian crisis was inadequate. IDPs were moved to unmanned ‘satellite camps’ without concerted efforts to reconcile them with former neighbours, amid threats of violence and corrupt distribution of a paltry KSHS 10,000 ‘compensation’.

The government has responded to underlying causes by establishing four commissions: an Independent Review Commission to examine the electoral process (Kriegler Commission); a Commission of Inquiry into Post-Election Violence (Waki Commission); a Constitutional Review Commission (CRC); and Truth, Justice and Reconciliation Commission (TJRC).

In theory, such inquiries can play an important role, providing a public account and acknowledgement of the past, which may be cathartic and provide some solace. Thus, the Waki Commission has been commended for its criticism of state security services and politicians, and attention to underlying issues of impunity, poverty, underemployment and the ‘land issue’. Much more importantly, commissions can make recommendations – yet, while Kenya has held many commissions, successive governments have usually failed to introduce any suggested reforms. Unfortunately, this record continues. The most notable absence is of a Special Tribunal – recommended by the Waki Commission to investigate 10 individuals who may have incited, organised and/or financed the violence – with the threat that the ‘list’ would go to the International Criminal Court (ICC). However, in June 2009 the government agreed to a tribunal by July 2010, which renders any high-level prosecutions prior to the 2012 election campaigns extremely unlikely, while few citizens or police officers have been charged or even investigated.

Unfortunately, the CRC seems set to suffer a similar fate to its predecessor; especially its continued unwillingness to address why Kenyans are divided on certain issues, such as the benefits, dangers and meaning of devolution. Consequently, there is heavy reliance on the TJRC to solve underlying issues. However, the TJRC suffers from a paucity of resources and a massive mandate, which includes the need to establish an accurate, complete and historical record of violations of human and economic rights inflicted by the state between December 1963 and February 2008, a picture of possible causes, and investigate corruption and irregular acquisitions of land. The danger is thus that the TJRC will add little to the ‘truths’ established by earlier commissions, while their collective recommendations are delayed until after the next election or indefinitely. Added to this is a deteriorating security situation – with the police and military increasingly acting as a law unto themselves and spread of the mungiki model of gang crime and terror – while politicians seem blissfully unaware of seething resentments or, more likely, believe that they can use them to their own advantage.

The unfortunate consequence is that violence, while far from inevitable, seems increasingly likely. At the heart of the problem lies a corrupt and tarnished political system characterised by an ‘ethnic logic’ of political mobilisation and support. To understand local potential for violence one must recognise the interplay between: a highly centralised system in which real power lies with the Office of the President; a lack of faith in key institutions (such as the anti-corruption and electoral commissions, parliament, judiciary and security services); a perception that the post-colonial state is (and has been) ethnically biased; communal discourses of past injustice and marginalisation regarding ‘lost lands’ and political patronage; pressure on elites to present and further ethnic claims; the use of inflammatory and chauvinistic or defensive ethnic language by political candidates and local opinion formers; the use of violence as a political and economic strategy; a culture of impunity for corruption, ethnic incitement and organisation of violence; the subsequent normalisation of violence; and finally, but not least, high levels of poverty, inequality, and un (and under) employment especially among the youth.

Given this litany of interwoven factors and long-standing issues it is clear that far-reaching reforms are required. The most important of these are:

1) Institutional and constitutional reforms to reduce presidential powers and increase faith in key institutions. The colonial administration bequeathed a highly centralised system, which respective presidents have used in the name of unity and development. This has encouraged an obsession with personalities as the problem and potential salvation, and created a zero-sum game with all eyes on the presidency.

2) The government needs to end the culture of impunity for participation in violence by police and citizens, and the use of violence as a political strategy. Despite evidence that KANU politicians incited, organised and financed ‘ethnic clashes’ in the early 1990s, no investigations took place. This history has encouraged a normalisation of violence, such that it is increasingly part of political and socio-economic strategies, and has spiralled out of control – as the growth of ethnic militias (such as mungiki) prompts an increasingly violent state security response, and yet more militia activity.

3) Finally, the government must look beyond economic growth to realities of poverty and inequality along with perceptions of state bias and historical injustice. This requires much more than donor rhetoric of ‘poverty reduction’ and praise for impressive growth rates without noticeable trickle-down, but also a deep understanding of the link between perceptions of past and present injustice and the politicisation of ethnicity and the ethnicisation of politics. At present, there is a tendency to explain African politics by a simple ‘politics of patronage’, or the notion that politicians use ethnicity to mobilise support and reward supporters with state largesse. While important, this narrative ignores bottom-up pressures and the broader base of political accountability, and encourages a simplistic dichotomy between ‘bad’ politicians and ‘good’ citizens. More specifically, this approach ignores ways in which narratives of ‘shared pasts’ – of displacement, injustice, marginalisation and/or achievement – provide people with a means to lay claims to ownership and control of space, and rights to assistance. Too often ignored, this dynamic produces a complex political terrain in which politicians use ethnicity to mobilise support, and ordinary citizens use communal discourses to further claims to rights and resources.

To tackle all of these areas in a coherent and aggressive manner is clearly no small task, especially given the unwieldy coalition government, the worldwide recession, and competing claims to resources and representation. Nevertheless, the urgency for reform renders the government’s lacklustre performance in all these areas a source of considerable concern, as failing to deal with underlying problems and new layers of grievance raises numerous reasons to worry about future electoral cycles.

*Dr. Gabrielle Lynch is a Lecturer in Africa and the Politics of Development in the School of Politics and International Studies, University of Leeds, and has been conducting research on politics and ethnicity in Kenya since 2003.

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