According to Brown, the global financial system is not in good shape, and global growth continues to structurally marginalise poor countries. However, Africa has performed well in recent years with growth rates exceeding those of the developed world. Brown quoted Ngozi Iweala – Nigerian managing director of the World Bank – who now makes the argument for the Sub-Saharan African continental economy to be recognised as comparable to that of the existing BRIC states (Brazil, India, China – and now South Africa). She envisions a future of ‘African lions and lionesses’ rather than ‘Asian tigers.’

In this success he paid tribute to those companies that have invested in African markets, and commented upon the steady rise of inter-African and South-South trade. Particularly important in the latter phenomenon is the rise of the Asian economies, whose drive for economic development (notably that of China) has seen them invest heavily in African commodities and the infrastructure necessary for their extraction. The major questions for western investment in Africa remain political.

Whilst Brown recognises improved economic performance in Africa, he drew our attention to ‘the other side of the picture.’ His worries are concerned with the stability of this growth. Growth for the next 20 years will continue to be strong in developing African economies. In addition, Asian and African consuming power will expand, driven by the growth of middle class spending power. But large numbers of people will remain in poverty. The majority of the working population will be without educational qualifications and jobs.

Rising African populations (currently 15 percent of the world’s population, and growing to over 20 percent in the next 2 decades) still only receive 1 – 2 percent of the world’s investment, and produce 1 -2 percent of the world’s wealth.

On education and health Brown was most strident in his conviction that we can tackle global inequalities. Having advanced in the last decades, the number of children in school is now going into reverse. We must ‘train a million teachers, and build a million classrooms’, using technology more effectively to open up the world through computers.

Brown categorically asserted than we cannot tolerate a situation in which the expenditure on a child’s education in, for example, the US amounts to $100,000, whilst in Africa it is around $300.

He quoted further stark statistics regarding healthcare – in Nigeria there is one doctor per 39,000 people compared to 1 doctor per 39 people in the US. Inequity in healthcare provision in Africa is compounded by the continent having the heaviest disease burden.

Such facts illustrate the dramatic difference between Africa and the West. The Millennium Development Goals will not be achieved within any area even a century after they were implemented.

Despite some progress having been made, the gap in opportunities remains wide. According to Brown, economic empowerment is the issue.

Investment in infrastructure can greatly increase growth rates. However, there remains a huge infrastructure ‘gap’ in Africa preventing effective power supply to business, goods getting to market and further trade developing.

There is however no mechanism for solving problems of this scale. To develop solutions, we need to see them as cross border challenges. Innovative sources of finance must be explored with the World Bank taking a lead.

There is also huge economic gain to be made from technology – particularly broadband internet provision, which can help communities leap a generation in communication and education by opening up the resources of the internet to even the remotest communities.

The developed world made promises through the Millennium Development Goals. Brown stated that ‘we must honour these promises, and as global citizens, take seriously our responsibilities.’

‘Distance in not a justification for being less concerned…Empowerment not charity, economic development not aid.’

By Magnus Taylor

Photo by Siddharth Khajuria

By Jean-Baptiste Gallopin

Fault lines

The collapse of one of North Africa’s longest-serving rulers – Zine al-Abidine Ben Ali of Tunisia – sent shockwaves through the Arab world and triggered an uprising of equivalent proportions in Egypt, the most populous Arab country. The revolts, which have been on an unprecedented scale, have surprised many and prompted widespread speculation over a possible ‘domino effect’, as a result of which successive authoritarian regimes fall as the impact of developments in Egypt and Tunisia begin to be felt. In this spirit, a guessing game of ‘who’s next?’ has begun.

However, rather than a ‘domino effect’, the Arab world is currently experiencing something that bears closer parallels to an earthquake; while shattering some buildings, most homeowners are merely being forced to undertake long-overdue repairs. The Tunisian and Egyptian examples have shown that large-scale, sustained revolts can occur when specific local incidents tie in with long-standing grievances spanning a broad spectrum of social classes. While such factors are present in many Arab countries, making copycat unrest inevitable, fully-fledged revolutionary change relies on a complex mix of much rarer ingredients. As such, reactive change will be broad but its form will vary.

Much of the Arab world faces deep socio-economic challenges associated with rapid urbanisation and a young, unemployed population. Official unemployment figures across the Middle East and North Africa range from 9.2% in Syria to 30% in Mauritania and 35% in Yemen, though these figures are subject to government manipulation and are in all likelihood greatly understated. They also disguise the fact that the unemployment rate for the region’s growing number of young graduates is much higher than for the declining contingent of uneducated youths – a key factor fuelling socio-economic frustration. To take one example, the official unemployment figure for young graduates in Morocco was 20% in 2008, twice the national unemployment rate.

Added to these socio-economic difficulties is the prevalence in Arab states of authoritarian regimes that actively exclude populations from involvement in public affairs, restrict freedom of expression and rely on brute strength for enforcement. Combined with widespread corruption and cronyism among ruling elites, the exclusion of major segments of populations from the political process is fuelling growing frustration and resentment towards incumbent regimes.

The Arab world’s socio-economic problems have long been highlighted, most notably by the UN’s Arab Human Development reports, first published in 2002. However, the recent uprisings have propelled these issues back on to the political agenda. This clearly shows how a country’s long-term trajectory is intimately tied to broader socio-economic and demographic developments, even in the most authoritarian environments.

Spreading the word

At the same time, these uprisings are ‘giving people ideas’. From Algiers to Amman, Arabs have been closely following recent developments on Twitter and the powerful pan-Arab satellite channel al-Jazeera, whose influence on Arab public opinion is greater than ever. As the Arab world has watched first the Tunisian and then the Egyptian people rise up against their authoritarian rulers, a ‘fear threshold’ has been breached and new political possibilities have suddenly entered the regional imagination. If the Egyptians and Tunisians have succeeded – albeit at this stage to varying degrees – in exerting pressure through street politics, it is almost inevitable that other regional populations will try to emulate their model. In the near-term, therefore, copy-cat demonstrations are likely to continue across the region. However, their scale, frequency and political significance will vary greatly according to the socio-economic and political environment of each country.

It would be wrong to assume that the Tunisian uprising provides a blueprint for what will happen elsewhere in the region. Egypt’s uprising, despite its similarity to that in Tunisia, has shown that regime change is far from an inevitable outcome of popular unrest and that regime insiders are skilled in preserving the essence of existing systems through cosmetic reforms. The appointment of Omar Suleiman, a military man, as vice-president has shown how the Egyptian army has sought to preserve its authority; despite his unprecedented dialogue with the opposition, Suleiman has adopted a stalling strategy in the hope of wearing out the protest movement without implementing radical reform.

Unrest may emerge in other countries, but in most places is likely to be short-lived, class-specific or localised. This is partly because few regional leaders have managed to alienate such a broad sweep of society, including both the lower and upper classes, as in Tunisia and Egypt. In the same vein, however, few regimes will now allow demonstrations to escalate to the point at which they could threaten their survival. Arab leaders have been watching these events with trepidation and will act pre-emptively to ward against similar uprisings in their own countries.

As a result, most Arab regimes are likely to muddle through the immediate aftermath of the current uprisings with a calibrated mix of security crackdowns, cosmetic political openings and a renewed commitment to subsidies on staple goods. In addition, structural factors including the cohesiveness of security apparatuses and broader power bases are likely to make many Arab states more resilient than Tunisia.

Long-term outlook

The significance of this ‘Arab awakening’ may well lie in the longer term. It seems inevitable that the uprisings will open a new era in the Arab state system, in which the politics of populism and street action become more relevant than identity politics focused on sectarian, religious and ethnic divides. For example, Egyptian society, which just two months ago was experiencing growing divisions between Muslims and Copts, has demonstrated a singular unity of purpose in its demand for an end to the Mubarak regime. Accordingly, the fault line in Arab politics could emerge most clearly between regimes and their populations, with the former finding it harder to manipulate social divisions to their own ends.

Beyond the immediate consequences of the uprisings in Tunisia and Egypt, the events of recent weeks have provided a reminder of the possibility of contested politics, even in authoritarian environments. Over the next few years, the region is likely to witness renewed mobilisation efforts by opposition groups and previously unpoliticised and currently invisible segments of the population. Such new actors in the coming years could pose a meaningful challenge to regimes that today appear solid and could alter the nature of these regimes, depending on rulers’ understanding of the lessons learned from Egypt and Tunisia. Growing popular opposition could also lead to reconfigurations of power within narrow ruling elites, particularly in countries where the security apparatus is firmly entrenched.

Finally, sensitivity to unrest will encourage regional governments to enact more ‘pro-poor’ economic policies in a bid to ease domestic frustrations, for example by stalling on subsidy reforms or pre-emptively buying in staple foodstuffs to forestall ‘bread riots’. Authorities may also be tempted by more overtly populist policies towards foreign companies. While the latter phenomenon has not been prominent in Egypt or Tunisia, it is already becoming apparent elsewhere in the region. A Libyan official in mid-January declared that homes being built by foreign companies ‘belonged to the Libyan people’ and should be seized, prompting the occupation of the buildings by crowds of demonstrators. In Mauritania, meanwhile, higher taxes and more far-reaching local content regulations in the mining sector, which is widely viewed as bringing little benefit to local socio-economic development.

***

Hot spots

More than poverty, it is frustration that drives unrest; more explicitly, it is the anger of young men with limited prospects in the face of a system viewed as unequal and unfair. This is why Algeria, a rich hydrocarbons-producing country that is marred by high unemployment and weak economic development, is likely to prove most susceptible to further unrest in the near future, not least because the government’s unresponsiveness has made rioting one of the few effective popular tools of public accountability, and somewhat of a tradition. Although the regime has proved capable of weathering major domestic unrest, the departure in the coming years of Algeria’s ‘independence-era’ generation could erode elite solidarity and lead to deeper changes in the political system.

Protests were a feature of political life in Yemen before the recent uprisings, but have received increased media attention since. They will continue in the coming months, in particular around parliamentary elections planned for April, though for now they appear unlikely to gather sufficient momentum to threaten President Ali Abdullah Saleh’s hold on power. Despite his lack of popularity, Saleh continues to be perceived by many, including much of the mainstream opposition, as the only figure capable of preventing the fragile country from collapsing into chaos.

Sudan is currently feeling the shockwaves from Tunisia as it enters a transition period that will culminate in independence for southern Sudan in 2011, and which is leading the north Sudanese economy to the brink. An upcoming drop in oil revenues is pushing the northern authorities to cut subsidies on basic staples in a context of crippling debt and an ailing local currency, which is placing a premium on food imports. As global food prices continue to rise, it seems only a matter of time before northern states experience major episodes of unrest. This could threaten President Omar al-Bashir’s control by providing competitors in the ruling elite with the chance to grab power.

Jean-Baptiste Gallopin is a Middle East and North Africa analyst at Control Risks, a political risk consultancy.

Note: For more detailed analysis, download the full version of this essay on the Crisis in the Horn of Africa essay forum.

Somalia has made international headlines for almost two decades now, first as a state of civil war characterized by clan warfare and humanitarian catastrophe, then as a failed state, and finally as a potential safe haven for Islamic terrorists. Contrary to the assumption about ‘black holes’ and ungoverned spaces voiced by politicians and some academics, the Harmony Project of the Center for Combating Terrorism at West Point has recently shown that the absence of a government in Somalia did not automatically provide fertile ground for Al Qaeda terrorism. Its researchers, who had access to declassified intelligence reports on Al Qaeda activities in the Horn in the early 1990s concluded that the foreign Islamist activists faced similar problems as did the UN and US humanitarian and military intervention in Somalia (1992-1995): they were partly distrusted as ‘foreigners’ who adhered to a version of Islam that was not popular in Somalia, they ran into problems with always changing clan and sub-clan alliances, they suffered from the weak infrastructure of the country, they lacked security, they were exposed to external interventions since no government could uphold Somalia’s sovereignty, and they were at risk of being ‘sold’ by petty criminals and others in Somalia to the enemy (the US).

Nonetheless, some terrorist attacks in Ethiopia, Kenya, and Tanzania (between 1996 and 2002) have been carried out by using Somalia as a ‘corridor’ into the region and for smuggling in weapons and personnel. After the attacks, some terrorists hid in Somalia. Clearly, a number of Somali extremists were trained in Somalia by foreign fighters, and some Somalis went to Afghanistan in the 1990s and early 2000s in order to receive training and gain combat experience at the Taliban’s side. Still, Somalia did not become a safe haven for Al Qaeda, and terrorist training facilities were extremely limited and quickly dismantled after the 9/11 attacks, for fear of US reprisals. UN missions to southern Somalia in the fall of 2001 concluded that no training camps or fundamentalist activities could be identified. In sum, Somalia was never a major field of Al Qaeda activities in the 1990s.

A further factor preventing Somalia from becoming an Islamist-controlled territory, at least up until 2005, was the heterogeneity of the local ‘Islamist camp’. Within groups such as Al Itihad and the courts, influential individuals held different views, for instance regarding the appropriateness of the use of violence. This led to schisms and uneasy alliances of convenience. Moreover, all Islamist groups had to consider the genealogical factor involved in the Somali civil war. Despite their aim to transcend ‘clan’ and establish an Islamic state, they had to cooperate with clan and sub-clan elders and warlords and their militias. Until 2005, militant Islamists did not enjoy popular support in Somalia. They also were not so well connected internationally. This increasingly changed with the violent external interference of Ethiopia and the US and the establishment of the Transitional Federal Government (TFG) under Abdullahi Yusuf in late 2004, who gained international recognition while lacking legitimacy in most parts of Somalia (apart from Puntland, his ‘clan-homeland’ in north-eastern Somalia). Particularly the joint Ethiopian and US-American counter-terrorism strategy after the 9/11 attacks contributed to the radicalization of a small group of dedicated Jihadists, which provided the nucleus for the later unfolding of extremist violence in Somalia.

Between 2002 and 2005, dozens of Somalis were abducted and assassinated in a ‘dirty war’ between ‘terrorists’ and ‘counter-terrorists’ in Mogadishu. When Ethiopia and the US finally encouraged (and paid) a group of warlords in early 2006 to form the Alliance for Restoration of Peace and Counter-Terrorism (ARPCT) in order to snatch terror suspects in Mogadishu and keep the local shari’a courts in check, the situation escalated. The local Islamic courts, many of which existed for a decade and provided law and order in various neighborhoods in Mogadishu and surroundings, joined forces and attacked the warlord alliance. In June 2006 they unexpectedly managed to drive the warlords out of the capital. The latter had lost popular support long ago as most Somalis had grown tired of the continued low-intensity warfare and the insecurity in the country benefitting primarily the warlords. Initially, the Islamists were extremely popular and could quickly expand their sphere of influence. Since they delivered some basic law and order and nascent ‘state’ services, most people in southern and central Somalia welcomed them. The international community, worried about the little known Somali ‘Taliban’, called for negotiations between the Islamists and the TFG that was politically divided and spatially confined to the town of Baydhoa in central Somalia. The negotiations were facilitated by the Arab League. They finally foundered in fall 2006, due to the fact that, first, within the UIC militants had gained increasingly in influence. The above mentioned jihadist nucleus had become institutionalized in the form of the Al Shabaab ‘youth’ organization, which officially came under the UIC umbrella. However, it showed tendencies to split the courts movement. Second, also the TFG and Ethiopia had not really been interested in negotiating with the Islamists but favored a military ‘solution’. The US, following Jendayi Frazers (then U.S. Assistant Secretary for African Affairs) extremely Ethiopian-friendly assessment, finally accepted the claim that the UIC was controlled by Al Qaeda and politically and logistically supported the military intervention of around 14,000 Ethiopian troops in December 2006.

Since then, militant Islamism gained momentum in Somalia. Between January 2007 and December 2008, the Ethiopian and TFG forces were confronted by an Islamist and clan insurgency against what many in Mogadishu and southern Somalia perceived as foreign and Darood occupation (Abdullahi Yusuf belongs to the Darood clan family; after his election as President of Somalia, many clan-relatives joined him as soldiers in the Somali ‘national’ army; Mogadishu is dominated by members of the Hawiye clan family that historically had been involved in brutal fighting with the Darood in the early 1990s). Thousands of civilians were killed in the war. The UIC leadership went into exile in Eritrea where it split into a ‘moderate’ and an ‘extremist’ faction in 2008. The former, headed by the former UIC-Chairman Sheikh Sharif Sheikh Ahmed, entered into negotiations with parts of the TFG and the United Nations, and was finally invited to Djibouti to form a new government, after Abdullahi Yusuf had lost the backing of Ethiopia and the international community. Ethiopia wished to withdraw from the extremely violent war theater it had helped to create. When Sheikh Sharif was elected as new TFG-President in January 2009, many Somalis and external observers briefly hoped for a new start of the transitional government. However, it was clear from the beginning that the extremists, particularly the militants of Al Shabaab, refused to accept Sheikh Sharif’s authority. Al Shabaab had started as a small group of extremists. But after the Ethiopian intervention it had become independent and transformed into the most militant and powerful southern Somali front fielding several thousand trained and ideologically oriented fighters. Even the ‘targeted’ killing of its long-term leader, Aadan Hashi Ayro, by a US missile in May 2008 did not weaken the movement. To the contrary, its new leader, Abdi Ahmed Godane, took over immediately after Ayro’s death and pledged support to Osma Bin Laden and Al Qaeda. After the withdrawal of the Ethiopian army, Al Shabaab took over most of the vacant positions and began to govern large parts of southern and central Somalia. It became notorious for administering harsh corporal punishment and death sentences against enemies and criminals.

The militant opposition against Sheik Sharif took shape when Hassan Dahir Aweys, Sheikh Sharifs former co-leader in the UIC, who had not joined his ‘moderate turn’ in 2008, came to Mogadishu in April 2009 and took over the chairmanship of the newly founded Hizbul Islam. Hizbul Islam and Al Shabaab joined forces; fighting with the TFG started in May 2009. Currently, the ‘moderate’ Islamists of the TFG (which actually includes a variety of opportunistic and corrupt Somali politicians, some warlords and Islamists of various orientations) can only survive with the strong support of the AMISOM (African Union ‘peacekeepers’ sent to Somalia originally in 2007 to aide the TFG; since then the AU troops have stayed on and gotten involved in the local fighting on various occasions) and the US. In June 2009, Washington had arranged for a 40 tons weapons and ammunition shipment to the TFG.

Arguably, the comparison of the UIC to the Taliban that was popular in 2006 was not well founded. There had been major discrepancies between both movements, such as the actual absence of much combat experience on the side of the UIC, and the lack of a consistent ideology among the Somali Islamists back then. Yet, in 2009, after three years of insurgency and fighting, the militant Somali Islamists, particularly Al Shabaab, in fact resemble the battle hardened and ideologically uncompromising Taliban of 1996, ready to rule a country. In this sense, the anti-Islamist propaganda of 2006 has fulfilled itself.

Somalia since 2006 is possibly the clearest example for the failure of US (and Ethiopian) counter-terrorism policy, which actually has produced what it was supposed to counter. Sociologically speaking, these developments demonstrate the entrapments of unintended consequences even for the globally most powerful actors.

The handover of the names of the suspects behind Kenya’s post-elections 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 Normalisation of Violence – Daniel Branch

Writing more than twenty years ago about Idi Amin’s Uganda, Ali Mazrui observed that
Everyone was talking about the tyrant. I suggested that more people had died in the second half of the Amin years as a result of anarchy than as a result of tyranny. Many of the killings were not…

DIY Violence is Corrosive of Nationhood – Daniel Waweru

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…

Kenya Post-2008: The calm before a storm? – Gabrielle Lynch

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…

The Spectre of Impunity and the Politics of the Special Tribunal in Kenya – Tim Murithi

On 9 July 2009, Kofi Annan the former chief mediator in the aftermath of Kenya’s post-electoral violence, transferred an undisclosed list of senior politicians to the Prosecutor of the International Criminal Court, Luis Moreno-Ocampo. These politicians are alleged to have committed crimes…

Watu Wazima: A gender analysis of forced male circumcisions during Kenya’s post-election violence. – Wanjiru Kamau-Rutenberg

Stories of men being forcibly circumcised and even castrated peppered news accounts of the madness that overtook Kenya in the aftermath of the December 2007 elections. According to the Waki commission that investigated the Post Election Violence (PEV),…

Kenya: Our Possible Futures; Our Choices – Sisule Musungu

We knew or should have known that it was coming. But somehow we thought or believed, as the most corrupt country in the region, that we could bribe our way out of catastrophe. That was the 2007 post-election violence in Kenya. Then, as now, we knew what our…

Truth, Justice, Reconciliation, and… land Tenure Reform? – Chris Huggins

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.

Accountability Debate in Kenya Unforlds in a Near Policy vacuum and Ethnic Tension – Godfray M. Musila

There seems to be consensus around the need to deal with injustices– gross human rights violations, economic crimes and abuse of power –perpetrated in Kenya over the last 35 years. However, Kenya lacks a coherent policy on the broader question of transitional justice: which institutions should be used (Special Tribunal for Kenya (1), Truth, Justice and Reconciliation Commission(2) [TJRC] or criminal courts), …

Incremental Judicial Reforms in Kenya – Charles A. Khamala

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?

Special Tribunal Enactment: Why cabinet, MPS, are Misleading Kenyans – N. Wainaina and P. Chepneg’etich

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.

Saving International Justice in Africa – Chidi Odinkalu

At the conclusion of its Summit in Sirte, Libya, on July 1, 2009, the Assembly of Heads of State and Governments of the African Union (AU) decided that “AU Member States shall not cooperate … in the arrest and surrender of President Omar El Bashir of The Sudan.” In a press release issued two weeks later, on July 14, the organisation explained that this decision “bears testimony to the glaring reality that the situation in Darfur is too serious and complex an issue to be resolved without recourse to an harmonised approach to justice and peace, neither of which should be pursued at the expense of the other.”

This debate is 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 visit OTJR.

When a Kenyan Cabinet minister suggested in early 2007 that perpetrators of corruption be pardoned if they confessed their guilt and returned the spoils, there was surprisingly little public reaction. This was perhaps taken with a pinch of salt given that Kenyan politicians are good at talking but then doing nothing. But when former anti-corruption chief John Githongo (accused by some of behaving like a drama queen and self-appointed high priest), made a similar statement in mid August 2008, his view made headlines that drew sharp reactions. One opinion piece employed the headline, “Kenya to become a Looters’ Paradise.” Githongo, who fled to Britain in 2005, claiming he feared for his life after accusing senior members of President Mwai Kibaki’s government of massive looting, had observed that past inquiries to establish culpability in Kenya had not only delayed justice but often made accountability much more difficult. As the government’s permanent secretary for ethics and governance, he exposed the notorious Anglo-Leasing scandal, which involved state contracts worth more than $1bn being secretly awarded to phantom firms. The exposure forced the resignation from Cabinet of several ministers closely associated with President Kibaki, including Chris Murungaru, David Mwiraria and Kiraitu Murungi, although the last two were later reinstated, after inquiries failed to find them guilty. Interestingly, Githongo’s amnesty call received support from the then Justice and Constitutional Affairs Minister, Martha Karua, who observed that granting amnesty was the only sure way for the government to win the war against corruption. Karua promised to have the Cabinet approve laws to grant amnesty in exchange for the stolen wealth. Previously considered a member of Kibaki’s inner circle, Karua resigned in April 2009, before the amnesty law could see the light of the day, citing frustrations in discharging her duties. The question that emerges is: what are the prospects for corruption prosecutions in Kenya? This paper argues that while corruption is one of the most significant contributors to structural inequalities, extreme levels of poverty, and the decayed state of Kenya’s economy, there are a number legal and political constraints that make prosecutions unproductive. Instead, the country should consider using conditional amnesty to recover the stolen property and public funds.

In the course of debates on the amnesty-for-economic crimes proposal, members of civil society accused those behind the call of disingenuity and being motivated by vested political interests. Mwalimu Mati of Mars Group Kenya, an anti-corruption pressure organisation, opposed the proposal, arguing that the Kenyan government had consulted no one about abandoning its duty to investigate and prosecute crimes of corruption. He maintained that by supporting Githongo’s proposal, the government was acting as if “Kenyans had nothing to do with decisions on their own resources which were stolen from them.” Mati argued that the amnesty provision would give economic criminals and looters of public funds “a get-out-of-jail-free card while hungry chicken thieves continue to be automatically sent to jail to pay for their petty crimes”. Writing in the Business Daily newspaper, Jim Onyango likewise observed that the plan to offer amnesty to the architects of past corruption could wipe out the taxpayers’ hopes of recovering more than KSh200 billion (about 2,909,937,160 USD) lost to plunderers in the past two decades. Githongo’s suggestion was also dismissed by another columnist as laughable: “If I steal a mobile phone but could be let off the hook if I make restitution, then we make a mockery of the judicial system. Theft has to be punished no matter what.”

While prosecuting perpetrators of past economic crimes remains appealing to the majority of Kenyans, several past and present factors pose monumental challenges to this strategy. Many of the cases involving influential individuals have often ended up in acquittals due to technicalities or insufficient evidence, as evidence is normally destroyed or corrupted beforehand. Indeed many past cases of grand corruption in Kenya remain unresolved, with little to show from the myriad of government anti-corruption initiatives. This is certainly not a problem unique to Kenya: in most developing countries with weak institutions, attempts to use the judiciary and ordinary criminal law to fight large-scale corruption have often failed due to procedural technicalities employed by defence lawyers, lethargic prosecutions, and ingratiating judicial systems.

In Kenya, the problem is illustrated by one of the Commissions of Inquiry set up by the Kibaki administration to investigate the ‘Goldenberg scandal’, a case in which the Moi government lost billions of Kenyan shillings through compensation for faked export of gold. The Commission’s inquiry was held in public, and uncovered the intricate web surrounding the looting of public funds from the Central Bank of Kenya. However, in the report, Commission Chairman Justice Samuel Bosire observed that while massive sums of money had been siphoned out of the country by the Goldenberg scheme, the Commission was unable to trace it.

In 2003, the Kenyan government sought recourse to asset-tracing and recovery of looted funds and spent well over Ksh 20m (approximately 273, 973 USD) to track the stolen billions in foreign accounts, with little success. Apparently, those who stashed this money in offshore accounts were not only able to hire the best defence lawyers around, but actually frustrated the tracking effort by using third parties to transfer the money to other accounts once they realised they were being followed. The difficulties in pursuing investigations were compounded by foreign banking laws, which in some cases impeded investigations. Albert Mumma, a lawyer, argues that assets allegedly acquired by means of corruption can only be confiscated in Kenya, once a myriad of legal processes has been followed, and that the state needs to prove beyond doubt that the cash or property concerned was obtained through graft. He adds, “This would take a long, long time to prove. He adds, “We would be sitting in court hearings for years.” In a similar vein, Patrick Kiage has argued that during Kibaki’s time in power, there has been no flood of cases dealing with the past economic crimes being filed in the Criminal Division because there is just “not enough time or resources to re-open files long-closed or open new ones in pursuit of trails long cold and dead.” To him, were the Kibaki’s Government to pursue many of the past economic crimes through criminal proceedings, the government “may long have been shunted out of power before the first batch of cases is complete.”  Indeed, it would be just as difficult to trace illegally acquired money deposited in Kenyan banks, as there is currently no law that supersedes the confidentiality clause binding these banks to their customers. In addition, legislation is required to define how to treat persons who unknowingly bought property from those who obtained it through graft, as this would certainly invite possible costly lawsuits.

So while members of the civil society continue to rightly accuse the Kenyan government of lacking political will and commitment to uproot graft in the country, there is also need to appreciate the inherent difficulties in pursuing the prosecutorial approach against perpetrators of economic crimes. While corruption has been endemic and even threatens to tear apart the entire country’s socio-economic and political fabric, there is a need for prudent and pragmatic measures that would promote both accountability and social reconstruction. Eventually, the overriding consideration should be to secure the stolen assets. This is where the amnesty suggestion can be meaningfully applied. A similar approach was adopted this April 2008 in Kazakstan, allowing those who wanted to come clean to put their money in special accounts, which would then not be subject to penalty or taxation. Kazakh officials said some 500 million USD was brought in while the law was in effect.

How can the provision of conditional amnesty in Kenya be meaningfully and creatively applied to recover stolen property or public funds and under what conditions? One suggestion would be to carry out detailed investigations in order to gather sufficient information about those past corrupt practices and, if possible, freeze the related accounts and assets. Subsequently, with a damaging dossier, it would be imperative to ask the suspected corrupt individual to voluntarily return the money and receive amnesty or be prosecuted. This way, corrupt individuals are more likely to cooperate. The amnesty provision can therefore be used as a leverage or credible threat to have individuals cooperate in the repatriation of stolen national assets. Those who fail to cooperate should then be threatened with prosecutions and such other measures like prohibition from holding of public office.

*Dr Kisiangani Emmanuel is a Senior Researcher at the Africa Programme of the Institute for Global Dialogue, South Africa. His areas of interest include Transitional Justice, Conflict Management and Peace Building, Political Governance and Diplomatic Discourse.

There seems to be consensus around the need to deal with injustices– gross human rights violations, economic crimes and abuse of power –perpetrated in Kenya over the last 35 years. However, Kenya lacks a coherent policy on the broader question of transitional justice: which institutions should be used (Special Tribunal for Kenya (1), Truth, Justice and Reconciliation Commission(2) [TJRC] or criminal courts), how these mechanisms should be deployed, how they would relate to each other, and how such mechanisms would fit within the ongoing constitutional and institutional reforms proposed under Agenda Four of the Kenya National Dialogue and Reconciliation (KNDR) process that produced the current Government of National Unity (GNU) (3).

While Agenda Four of the KNDR (4) prescribes several measures including broad institutional reforms, transparency accountability and ending impunity – measures usually associated with transitional justice approaches in their broadest conception – it cannot be regarded as a transitional justice policy. Other than the resolution adopted by the KNDR for the establishment of a TJRC that proscribes the granting of amnesty for crimes against humanity and attempts to enunciate broad ‘principles’ on the operation of the TJRC (5), Agenda Four lacks specificity on any of the crucial questions relating to transitional justice. Further, since the decisions to establish a Special Tribunal and the TJRC were taken, the government has made no attempt to enunciate such a framework. While recent crisis talks in the Cabinet on the role of the International Criminal Court (ICC) yielded varying suggestions from different Ministers on what should be done (6), it was not intended as a policy forum. The President convened the meeting in order to fashion a response to the handing over to the ICC Prosecutor of the list of key suspects (prepared by the Commission on Post Electoral Violence) by Kofi Annan, the mediator of the KNDR. The tense and rancorous exchanges reported to have happened in the meeting were perhaps not conducive to sober reflection.

Moreover, the sharp disagreements within Cabinet over how to deal with post-electoral criminality have not been conducive to a coherent approach. Nowhere is this more evident than in the government’s approaches to the Special Tribunal and the TJRC. Government démarches relating to the two mechanisms seem to proceed in isolation from each other. As a result, discussions on the questions of transitional justice itself remain largely impoverished, focusing – even in this case indecisively – on only on a select number of politically contentious issues such as amnesty and the ICC, and exclude ‘alternative’ mechanisms such as ‘ordinary’ criminal courts.

A number of reasons can be proffered for the lack of an official transitional justice policy – in whatever form – and the resultant incoherence in approach.

First, the decisions to establish both mechanisms were taken in the middle of a national crisis. The immediate purpose of the KNDR was to bring an end to violence and to install a broad-based GNU. Such circumstances were clearly not conducive to a reasoned articulation of a transitional justice policy. Second, the debate on transitional justice – to the extent that it exists within government – is taking place within a polarized political environment. Beyond the convergence of views on the need to address past injustices, the GNU partners do not seem to agree on much. As elaborated in the discussion of various mechanisms, there are competing notions of justice that dictate different approaches. Lack of agreement also stems from the fact that the President, the Prime Minister and those who readily do their bidding are engaged in a vicious power struggle. For the President, who has previously enjoyed unfettered executive power inherited under a draconian constitution, the idea of sharing such power does not seem to have sat well with him. For his part, the Prime Minister has been keen to assert executive power – albeit for the most part ill defined (7) – vested in the new office by the national accord that created the GNU. In an event that underscored the nature of these struggles in government, in April 2009, the Speaker of Parliament was forced to enter the fray by deciding in a historic ruling on whether the President was entitled to appoint the powerful Leader of Government Business in Parliament (which comes with potential control over the government’s legislative and reform agenda) without consulting the Prime Minister in terms of the KNDR Act; and whether in fact the Prime Minister, rather then the Vice President (affiliated to the Party of National Unity [PNU]) should assume that position (8).

Third, the apparent attempt by one side of the government – the PNU – to shape the course of transitional justice seems to have reduced the chances of what should be a cooperative effort, especially in the context of a government of national unity (9). From the author’s discussions with a number of stakeholders, it emerged that the then Minister of Justice, Ms Martha Karua (PNU), had drafted the first TJRC Bill without sufficiently involving coalition partners, civil society or other key stakeholders. Heated parliamentary debates relating to key provisions of the bill reflected dissatisfaction with this approach. The few members of civil society who were contacted by the author suggest that it was too late for them to provide any input, having been given less than two days to respond before the bill was presented to Parliament (10). Similarly, the defeat in Parliament of the bill aimed at entrenching the Special Tribunal law in the Constitution can be attributed in part to the failure by government to engage with relevant actors, including MPs across the political party divide. Some MPs have suggested that they did not have enough time to familiarize themselves with the contents and voted against the bill because of their suspicion of the government’s true intentions (11). It is noteworthy that President Kibaki and Prime Minister Odinga have lobbied their constituencies in Parliament to pass the law after the two principals came under sustained pressure from international actors. No sooner had President Kibaki named the commissioners and chair of the TJRC (22 July 2009) than they (the commission and its chair) came under attack from various quarters. The credibility crisis (12) that has engulfed the TJRC reflects at least one of the pitfalls of a government-driven transitional justice process (real or perceived): the possibility that the institution could lack total legitimacy, a necessary ingredient for a successful transitional justice process.

Fourth, while most Kenyans want justice in one form or another, an interesting dynamic has developed in the context of ethnic-based contestation within the current political sphere (13). Those clamouring for justice on occasion recede into ethnic constituencies where action against particular individuals is invariably seen as a witch-hunt. Since questions of accountability seem inextricably linked to political succession and reorganization of the state, at a certain level, justice has an ethnic dimension whose contours must be internalized and acknowledged. Few can deny that this renders the task at hand even more complex and difficult to realize. For one, the result of this ethnic dimension is the dilution of civil society pressure on government and subsequent lack of incentive for timely and appropriate government action to drive accountability processes forward.

Apart from the lack of agreement on how the past should be reopened for scrutiny, and whether any penal consequences should apply as one of the prescriptions, post-Kibaki succession scenarios and broader issues of institutional and constitutional reforms also underpin the actions of various actors in the transitional justice debate. When one dissects the transitional justice debate – inseparable from the wider context of constitutional and institutional reforms –it emerges that transitional justice questions invariably rally ‘reformist forces’ against an illiberal, pro-status quogroup that does not favour the dissolution of the oppressive post-independence political and economic order that has operated to the benefit of a few (14). The forces opposed to institutional reforms seem by extension inimical to any accountability process that would open and in a transparent manner scrutinise the numerous closets of historical injustice. Together with this historical legacy, the dynamics of a coalition government and succession battles that come with it are defining not only the ‘kind’ of justice that Kenya might pursue but also the roles of various actors in that process.

* Godfrey M Musila is a PhD Candidate (International Criminal Law and Justice), Oliver Schreiner School of Law, University of the Witwatersrand, Johannesburg and a Senior Researcher, International Crime in Africa Programme at the Institute for Security Studies, Pretoria. He has authored two articles on the Kenyan transitional justice process (African Renaissance Journal Vol.5 No.1 2008 and South African Year Book of International Affairs 2008/2009). Sections of this Working Paper are drawn from his forthcoming article ‘Options for Transitional Justice in Kenya: autonomy and the challenge of external prescriptions’ International Journal of Transitional Justice (Oct 2009).

Notes

1. Recommended to try those who bear the greatest responsibility for alleged crimes against humanity committed between 27 Dec 2007 and 28 February 2008 by the Commission of Inquiry into Post Electoral Violence (Waki Commission) appointed by President Kibaki. See Government of Kenya, Report of the Commission of Inquiry into Post Electoral Violence (2008).

2. To be established in terms of the Truth Justice and Reconciliation Act 2008.

3. For the National Accord and Reconciliation Act 2008, and other documentation related to the Kenya National Dialogue and Reconciliation, see <http://www.dialoguekenya.org/agreements.aspx>

4. Agenda Four of the National Dialogue and Reconciliation process relates to ‘ Long-Term Issues and Solutions’

5. See Kenyan National Dialogue and Reconciliation Truth, Justice and Reconciliation Commission. The ‘principles’ are: independence [of TJRC]; fair and balanced inquiry; [grant of] appropriate powers; full cooperation [from government and all concerned]; strong financial support [from government and donors].

6. Cabinet Meeting, July 14 2009. Its is reported that Cabinet is divided into various camps: between those who favour prosecutions (before the ICC, the Special Court or before national courts); and those who oppose prosecutions and favour an expanded role for the TJRC to deal with post-electoral crimes.

7. S 4 (a) of the National Dialogue and Reconciliation Act, 2008 provides, without elaboration that the PM ‘shall have authority to coordinate and supervise the execution of functions and affairs of the Government of Kenya including those of Ministries’. While this suggests a parliamentary system in which the PM should run government while the President maintains a backseat, the NDR Act leaves intact other powers of the President that undercut those vested in the PM. While ODM has favoured this wide construction, PNU has sought to limit the PM’s functions as much as possible. The struggle has pitted the PM and the head of the Civil Service and Secretary to the Cabinet (a Presidential appointee, who under the old dispensation supervises ministries), with the latter accused of undermining the PM.

8. See Decision of the Speaker of Parliament on the Interpretation of the Constitution and the National Dialogue and Reconciliation Act (Speakers Communication’) of April 28 2009 available at<http://www.bunge.go.ke/parliament/> (accessed on 12 July 2008).

9. A number of civil society representatives working on issues of justice and victims had expressed concern over their exclusion from the legislative process, both for the Special Tribunal Bill and TJRC Bill. At the height of controversy over the amnesty question (against which the Justice Minister Martha Karua, (PNU), stood vehemently opposed), it emerged that the ODM – supposedly an equal partner in terms of the National Accord – had not been involved in the formulation of the draft law.

10. See for instance, Amnesty International, ‘Concerns about the Truth Justice and Reconciliation Bill’ May 21, 2008 at 11-12 raising concerns over limited CSO involvement in the preparation of the TJRC Bill.

11. Standard Reporter ‘Bill: What went wrong with the big guns?’ The Standard (Nairobi) February 15 2009.

12. See author’s comments on this issue at: http://rethinkingjustice.blogspot.com/

13. On the lingering role of ethnicity in the political discourse in Kenya see various in George Wachira (ed) in Ethnicity, Human Rights and Constitutionalism in Africa (2008).

14. On historical injustice and the nature of the post-independence state see generally See generally Makau Mutua, Human Rights and State Despotism in Kenya: Institutional Problems, 41 Afr Today 5 0 (1994).and Republic of Kenya, Report of the Commission of Inquiry Into Land Clashes (Akiwumi Report), 1999.

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

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.

The above article is available as a PDF