The Kenyan Truth, Justice and Reconciliation Commission (TJRC) is mandated to enquire into human rights violations, including community displacements, settlements, evictions, historical land injustices, and the illegal or irregular acquisition of land, especially as these relate to conflict or violence. access to land is often cited as one of the key structural causes of violence in Kenya. However, political figures have manipulated and misrepresented the ‘land issue’ in the country, to the extent that it often seems to be an excuse, rather than a valid grievance. How should the TJRC address the land issue, which is so easily instrumentalized and so deeply linked to problematic conceptions of ethnicity? In order to answer this question, we first have to ask: why is the land issue relevant today?

The British colonial regime in Kenya caused significant disruptions to landholding patterns in many parts of the country, which still reverberate today, at the level of ‘high politics’ as well as ‘folk politics’. Land held under customary tenure by Kenyan communities was treated as ‘vacant’ by the colonial regime and appropriated for ranching and farming by white settlers. Even when the colonial government created ‘native reserves,’ land remained under the control of the Crown and hence vulnerable to alienation by the state at any time. Large parts of the central highlands, historically home to the Kikuyu and other communities, were appropriated for settler agriculture. Former inhabitants of these areas were forced into farm labour elsewhere in the country. Parts of the Rift Valley were also greatly affected. During the war of resistance, the members of the Land and Freedom Army fought for a restoration of land rights as part of a wider liberation from colonialism.

Under the terms of the independence agreement negotiated at Lancaster House, the administration of President Kenyatta pledged to respect ‘private property’, without regard to the ways in which land had been acquired. Rather than returning the areas appropriated by white settlers to customary tenure, the government accepted a ‘willing buyer, willing seller’ approach. Former farm workers, many of them Kikuyu, took advantage of the land-buying schemes offered by President Kenyatta to purchase plots in areas which remain a focus of discontent and periodic violence today.

Like the colonial Governor before him, the President held great powers over land distribution, with few checks and balances. Land owned under custom remains the private property of the government, and pastoralist land is supposedly held ‘in trust’ for local communities by the government. However, in practice Trustland is often sold-off, whether or not the sale is in the public interest. Official policy has always been to replace customary tenure with a freehold title system. This has left many communities, particularly pastoral groups in the Rift Valley, feeling that land customarily held ‘in common’ by their communities was vulnerable to alienation. Public land has been illegally distributed by the political elite in order buy the loyalties of their ‘clients’. Prominent families amassed huge farms and ranches under both Kenyatta and Moi. Government resettlement schemes were affected by corruption, leading to further inequality in landholdings. More generally, corruption became entrenched in the surveying and cadastral services, casting doubt on the validity of titles and creating serious land tenure insecurity which persists today.

Grievances over land access have regularly been manipulated by politicians in order to foment political violence. In 1992, KANU politicians organized violence against Kikuyu communities in ethnically-mixed areas to displace potential opposition voters. Some 1500 people died in 1992. Land-related grievances were used to mobilize mobs and justify violence, often wrongly described in the media as ‘land clashes’. Following incitement by KANU politicians during the 1997 elections, hundreds of thousands of people were forced from their homes. However, little was done to find long-term solutions to the resulting internal displacement problem. The Akiwumi Commission of enquiry into the violence recommended that the role of specific individual administrative and political figures in planning the killings be investigated. However, these recommendations were ignored.

Land issues are multidimensional: at the micro level land is an economic asset which benefits individuals, and land access becomes an increasingly important political issue as land-scarcity increases. At the meso level it represents an intangible ‘community territory,’ which perhaps explains why major land-owners are able to publicly articulate ‘communal’ grievances over land. It is undeniably linked with the calls for Majimbo, discussed by Daniel Waweru in his paper. However, it is not just about ’sons of the soil’ controlling land. When land uses change – for example, when pastureland is converted to farmland, or vice-versa – there are real social and environmental repercussions for neighbouring communities.

So, land issues are clearly important, in the sense that they are both deeply-felt, and have been used to mobilize violence. How then has the government of Kenya addressed these problems? The National Rainbow Coalition (NARC) came into power on an anti-corruption platform. The new government expressed early support for a truth commission; however, it failed to establish one. Some of the alleged perpetrators of violence in the 1990s were incorporated into the NARC government. NARC also failed to adequately provide for those who had been displaced in political violence, and who continued to live in terrible conditions. The government created a Task Force on Displaced People, but its work has been very heavily criticized. President Kibaki’s government did establish the ‘Ndung’u’ Commission’ into illegal allocation of land, which recommended that ultimate responsibility for land rest with a National Land Commission, rather than the president, and that a review of land titles be initiated. The findings of the Commission were largely welcomed by Kenyan land specialists. However, few of the report’s recommendations were implemented. While the fundamental and systemic aspects of the land problems identified by the Commission’s report have been left to fester, evictions of communities from ‘gazetted’ (protected) forest areas such as the Mau Forest and Mt. Elgon Forest have been implemented with excess force and without resettlement of many of those evicted. In some cases, evictions exacerbated local ethnic and political tensions. Gains from illegal land acquisition have since been utilized to fund election-related violence.

The government also formed a Committee of Eminent Persons in 2006 to report on the key concerns of Kenyans and their implications for constitutional reform. This report was written, but has never been released.

To date, the establishment of ad hoc commissions of enquiry appear to have served as useful diversions, tying up the resources of government and other stakeholders in the development of recommendations which are rarely implemented. Despite these disappointments, the existence of those reports in the public domain does represent a basis for advocacy and debate. The issues are out in the open, and the major land-grabbers and the flashpoints of conflict are known.

Therefore, if the TJRC is to address land issues, will it just produce more empty recommendations, destined to be ignored? Several truth commissions in other parts of the world, such as Timor-Leste, have identified land-related inequality and human rights abuses as a root cause of conflict, but their calls for further action have not always been implemented. Those implicated in land-grabbing and other injustices are typically amongst the political elite, and able to block reforms.

However, despite Kenya’s history of ‘paper tiger’ commissions, there are glimmers of hope that the TJRC could go further than that: First, the national Land Policy, drafted in 2006, was finally approved in June 2009. The policy is seen by many as a progressive document providing protection for those communities using land under communal tenure systems, and calls for compensation and reparation for historical injustices. The country now has a practical framework for the implementation of the TJRC’s recommendations regarding land. Second, the Chair of the TJRC, Ambassador Bethuel Kiplagat, is an expert on the causes of conflict in Africa and is no doubt well-aware of the socio-economic dimensions of violence in Kenya, including land issues. He should be able to guide the TJRC towards the development of practical and far-reaching recommendations. Third, there are a sufficient number of skilled people, in government and civil society, who are committed to land tenure reforms. They should ensure that the TJRC does not turn into a gravy train for land experts, but results in clear outcomes. Fourth, it is reasonable to expect that international donors, who have supported the Land Policy development process, will use their leverage to ensure that land reform happens. Donors were united in the face of the 2008 violence; they should unite on the land issue, and refrain from letting their own ideological positions get in the way of Kenya’s much-needed reforms.

There are compelling reasons to address the land issue in a comprehensive way. Reform will reduce popular grievances, and take away one of the most effective rallying cries available to those inciting violence. Seizing ‘grabbed’ land will remove a source of revenue from corrupt politicians and businessmen who are willing to pay unemployed youth to engage in violence. Punishing those who have committed land-related crimes will be a concrete step towards reinforcing the rule of law for all and doing justice on behalf of all those who have struggled, since the pre-independence days of the Land and Freedom Army, to claim their rights. Applying legal sanctions against the major land-grabbers will also defuse the perceived ‘ethnic’ aspects of the land question. Those guilty of injustices around land are not, after all, entire ethnic communities, but specific members of the elite who abuse their economic and political power. The TJRC should prevent them from doing so, through recommending effective land tenure reforms.

*Chris Huggins was based in Kenya from 1998-2005. He is a specialist in conflicts over land and natural resources, particularly in Africa, and a PhD candidate at Carleton University, Ottawa. He recently contributed a chapter on “Linking Broad Constellations of Ideas: Transitional Justice, Land Tenure Reform, and Development” to Pablo de Greiff and Roger Duthie, (eds), Transitional Justice and Development: Making Connections (New York: Social Science Research Council, 2009)”

References

Commission for Reception, Truth and Reconciliation in East Timor (CAVR) (2005) Chega! The Report of the Commission for Reception, Truth and Reconciliation in East Timor. Dili: CAVR. Available online at http://www.cavr-timorleste.org/chegaFiles/finalReportEng/07.9-Economic-and-Social-Rights.pdf

Kamungi, P. and J. M. Klopp. (2007). “Failure to protect: Lessons fromKenya ’s IDP network”, Forced Migration Review, 28. 52-53 Available online at http://www.fmreview.org/FMRpdfs/FMR28/29.pdf

Republic of Kenya (2009) National Land Policy. Nairobi: Ministry of Lands. Draft version available online at www.ilegkenya.org/pubs/docs/DraftNationalLandPolicy.pdf

Southall, R. (2005) ‘The Ndungu Report: Land & Graft in Kenya”. Review of African Political Economy, , March 2005, pp.142-51. Available online at .oxfam.org.uk/resources/learning/landrights/downloads/ ndungu_report_land_graft.rtf

Wakhungu, J., and E. Nyukuri and Huggins, C. (2008) Land Tenure and Violent Conflict in Kenya: Consultative Conference Proceedings Report. Nairobi: ACTS Press. Available online at www.landcoalition.org/pdf/ACTS_LandConflict_report.pdf

We welcome links to this article and comments. Reproduction or redistribution of the above text requires the prior consent of the original source. Please contact lydiah-kemunto.bosire@politics.ox.ac.uk

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

The above article is available as a PDF

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.

The above article is available as a PDF

The handover of the names of the suspects behind Kenya’s post-election violence to the International Criminal Court (ICC) opens an uncertain chapter in the country’s history of political violence. This development has generated a vibrant debate among Kenyans: What should accountable politics look like? What is the role of transitional justice in getting us there? Under what conditions might the current turn of events contribute to the country’s long term stability?

This forum offers a space where concerned Kenyans can come together with a range of experts, scholars, practitioners, and commentators to discuss fundamental questions about how Kenya got here, and the strategies necessary to move the country forward. This essay provides an overview of recent debates on violence and accountability in Kenya and summarizes the first set of contributions to this forum.

Any policy aimed at addressing Kenya’s current crisis necessarily assumes the existence of a clear understanding of what caused the violence in the first place. While some scholars explain the recent cycle of violence as a manifestation of the negative side of electoral democracy, where elites fight over control of the state in a context of zero-sum politics, others emphasize the trend of informalizing violence, where elites set up, control, or manipulate an alternative security infrastructure (which, among other things, can be deployed to coerce opponents). Others still find these explanations incomplete, and instead cite structures of inequality, with a particular focus on grievances over access to land and resources. Many of these explanations privilege the agency of the political class in manipulating ethnic cleavages.

Daniel Branch’s essay in this series disagrees with many of these accounts’ focus on elites, as they insufficiently interrogate the agency of ordinary Kenyans in the violence. Normalization of violence, Branch argues, is evidence of a society’s shifting moral landscape: Kenyans increasingly accept violence in a range of arenas as a means of exerting authority. Elite manipulation of that violence to reduce electoral uncertainty forms only one expression of a wider social phenomenon. Branch’s conclusion points to a question that continues to be debated in response to violence by state agents: is there moral and immoral violence? Or is it the case that (as with the dichotomy of political and apolitical violence that Branch finds unhelpful) in time the distinctions dissipate?

Daniel Waweru’s essay also discounts many of the common accounts for the post-election violence, and offers in their place an explanation based on the permeation of the majimboist ideology outside of the political class and into the community. This view carries implications for what is politically feasible in the current considerations of accountability and constitutional reform: Waweru argues that while President Moi informalized violence during his reign as a strategy of strengthening the ethnocentric majimboist fringe, his exit from power terminated state sponsorship for the majimboist project, leading Kalenjin opinion leaders to be more radicalized, and their project of ethnic cleansing more ideological and popularized. Consequently, the very majimboist elites who must come into the political fold for there to be effective constitutional reform in Kenya are the same ones who would be marginalized in processes of accountability. In what appears to be a variation of the ‘peace v justice’ debate that has characterized Sudan, Uganda and elsewhere, Waweru argues that Kenya can have either reform or accountability, but not both.

Nonetheless, Gabriel Lynch’s essay argues that both accountability and reform are essential for Kenya, although she sees little evidence that the state will act differently from previous episodes of violence. Highlighting that reforms to date have been largely superficial and procedural with little focus on how complex issues coalesce, she offers three concerns on which the state must focus: the presidency and its zero-sum politics, impunity and the informalization of violence, and the politics of ethnicity. Further, she points out that the manner in which Kenyan (and African) politics are framed and understood – as ‘good’ citizen v ‘bad’ politician, for instance – misses the different meanings of history, incentives and reciprocity in political processes.

Despite Lynch’s scepticism, the handover the Waki envelope to the ICC has generated a vibrant (and hopeful) discussion on the importance of historical clarification and transitional justice in general, and of prosecutions in particular. However, the Kenyan media is dominated by confusing descriptions of which mechanism is legally feasible or politically desirable. What happens when many Kenyans appear to prefer the ICC and have no trust in a national process; international NGOs prefer a domestic process because, they argue, Kenya has the institutional capacity that can deliver justice with some modifications (although an equally persuasive explanation for this preference from international NGOs may be the general reluctance among many ICC supporters to see the Court in yet another African case); prominent ODM parliamentarians declare their intention to actively sabotage efforts for domestic prosecutions; and cabinet members from both parties argue that the only way is a domestic tribunal because to do otherwise would imply that Kenya is a failed state? Which of these interests should matter more? Who decides? Is it possible for this discussion to emphasize objectives of accountability, leaving processes as secondary considerations?

In all the confusion, another important discussion is glossed over, as Tim Murithi emphasises in this forum: he makes intelligible the reasons why Kofi Annan handed over the envelope to the ICC prosecutor. While the three ministers who went to Geneva have oscillated between shock at an Annan ‘betrayal’ and (reluctant) praise of Annan’s ‘patience’, it remains unclear why Annan acted as he did. Murithi argues that Annan passed the envelope to the ICC because the coalition seemed oblivious to the fact that their disinclination for accountability placed Kenya in a high risk category in the framework of the Office of the Special Advisor of the UN Secretary General for the Prevention of Genocide. In their vacillation between doing nothing, paying lip service to prosecutions or expressing preference for a Truth, Justice and Reconciliation Commission, political leaders exhibited a lack of political vision for meeting the justice needs of victims, thus forcing Annan’s hand.

In thinking about lessons that we can draw from the past violence, the essay by Wanjiru Kamau-Ruternberg analyses how the performance of gendered violence in the form of forcible male circumcision plays into ethnic politics. She argues that circumcision offered a framework for Mungiki violence against Luo men because it was embedded in a narrative of feminizing ethnicities; a narrative was alive in the discourses of Kenyatta, found confidence in the period of the draft constitution referendum, and was ironically embraced by Raila Odinga himself. In this atmosphere, where the feminized could be violated, it was only a matter of time before the gendered ‘ecology of violence’ expanded to include feminized Luo men.

Sisule Musungu’s contribution focuses on the way forward. His summary of a 2000 report on possible future Kenyan scenarios emphasizes the need to avoid the maintenance of the status quo – what the project terms the ‘el nino’ scenario – as the outcome of such a scenario can only be fractured decline. He argues that, much like the late years of the Moi era, Kenya has reached another crossroads, and it might be time to dust off and reconsider the discussions that inspired change a decade ago.

Even so, the possible political outcomes from the current crossroads are not obvious. Might Kenya be the case where the heretofore weak ICC ‘deterrent’ argument gains relevance? For instance, to what extent are shifts in Kenyan political and ethnic alliances a response to a credible threat of prosecutions? Does the potential involvement of the ICC (and the subsequent excitement about prosecutions) have the capacity to de-ethnicize and de-collectivize the post-elections violence, to recast blame from communities to individuals in the political class? Or would prosecutions be inadequate for the multifaceted forms of violence experienced in Kenya? Beyond the ICC, how adequate or appropriate are the proposed transitional justice measures for the Kenyan context? What are the competing interests in Kenya’s project of political reform and accountability, and whose interests are likely to triumph?

These and other questions will be tackled in future essays in this forum. We welcome your reflections and contributions.

*Lydiah Kemunto Bosire is reading for her doctorate in politics at the University of Oxford, with a research focus on transitional justice in Kenya and Uganda. She is also the co-founder of Oxford Transitional Jusitice Research (OTJR). Previously, she worked at the International Center for Transitional Justice, the WHO and the UN.

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