“Central Province” leadership, the 2012 Kenyan Presidency, the ICC and the United States

 

The Standard has posted an interesting story on-line for the Sunday paper under the headline: “The hidden battle of class and power in Central Kenya”.

The endorsement of Uhuru Kenyatta as the leader of the Kikuyu by the Minister for Environment, John Michuki, has raised eyebrows but many think there is more to the statement.

Several personalities and political forces are digging in to inherit President Kibaki’s Central Province voting bloc and mantle, which is estimated to be worth four million-plus votes.

However, underlying this succession battle is a simmering rivalry in the politics of class and power that has been playing out for about a century.

Macharia Munene, a professor of history at the United States International University, Nairobi, says this class struggle dates back to colonial times. Then, peasants invented a tradition of resistance against colonialism.

However, a section of Africans, the so-called loyalists, collaborators and homeguards, opted to work for the colonial authorities in exchange for privileges and goodies like education, land, and jobs.

The resistance would culminate in the violent confrontation between the natives coming together under the Mau Mau resistance movement, and the British colonial government.

Central Province saw the most intense action for the seven years the Mau Mau uprising lasted. The relationship and roles of both loyalists and nationalists was more pronounced and hostile in the region than in other areas.

However, at independence, collaborators seized the levers of power and proceeded to economically and politically dominate State affairs, including distribution of resources, opportunities, senior civil service and parastatal jobs.

“Unfortunately, it was the loyalists who were better placed to take over power, having enjoyed cosy relationships with the departing colonial powers, but also having enjoyed privileges like better education than their nationalist brethren,” says Macharia.

Perpetual struggle

It is in this context that Michuki’s statement has re-ignited the twin narrative that has defined Kenya’s and central Kenya politics.

The narrative of one community, two classes in perpetual struggle for political and economic power. It is a context in which a wealthy minority uses its access to political power to increase its economic fortunes at the expense of the majority.

First it was the British colonial settler minority (1895-1963), and then the Kenyan political and economic elite (1963-to date).

The scholar says this elite in central Kenya has dominated regional politics and seeks to succeed Kibaki.

President Kibaki himself was through out the Kenyatta regime considered an outsider. Even in 2002, he only made it to power on the back of a broad and most inclusive political movement the original National Rainbow Coalition and was even abandoned by his erstwhile ally Njenga Karume.

The foremost politician seeking to destabilise the status quo in Central Province is Gichugu MP Martha Karua who has made it clear she would be gunning for president in 2012. Political analysts saw Michuki’s statement as a warning to Karua, whom this vcartel sees as a spoiler.

Former Subukia MP, Koigi Wamwere, says Michuki’s endorsement of Uhuru is an attempt by this economic elite to perpetuate itself.

“Michuki is warning other pretenders to the throne not to dare even try,” Koigi said.

By coincidence I started reading Koigi Wamwere’s autobiography I Refuse to Die during my trip to Washington to the MCC this week, so this is especially topical for me.

As I noted previously, Uhuru Kenyatta has been in New York and Washington of late as Kenya’s Finance Minister, as well as co-Deputy Prime Minister, attending UN and World Bank meetings and advocating for MCC compact status for Kenya. Amos Kimunya was Kibaki’s initial appointment to the Finance Ministry when he named the key cabinet spots during the post-election period. When Kimunya was forced to step aside due to the scandal over the sale of the Grand Regency hotel, Kibaki tapped Michuki, who was then succeeded by Kenyatta.

It’s especially interesting to look at how this plays in relation to the U.S. During the post-colonial heyday of the Cold War of course, the U.S. aligned with Jomo Kenyatta (and reportedly helped fund Tom Mboya covertly while the Soviets reportedly helped fund Oginga Odinga) and KANU “conservatives”, including Moi in his day. The U.S. interests supposedly served were both direct military alliance (access to bases and such) and other security cooperation, and seemingly some sort of ideological alliance based on the notion that the Kenyan model of one party formal “African socialism” involving conservative patronage, and state-created and supported oligarchy was preferable from a U.S. perspective to a version more akin to Nyerere’s or other more traditional, populist or radical “socialisms”.

Since the end of the Cold War and the fall of the Berlin Wall things have been complicated. Smith Hempstone, George H.W. Bush’s political appointment to the Ambassadorship, really stuck his neck out to push democratic reform and made a major contribution to forcing Moi to amend the constitution to allow competing parties, while maintaining military and security cooperation. Hempstone, a former editor of the Washington Times clearly came to the post with U.S. conservative bona fides and was vigorously anti-socialist. At the same time, however, other Americans continued to support Moi. As I noted in a previous post, one of Washington’s leading conservative think tanks generated a pro-Moi position paper in 1990 and Republican consultant and lobbyist Charlie Black and his firm represented Moi on past the first multi-party election in 1992 and into 1993 according to their foreign agent registration filings.

Hempstone believed that supporting democratic ideals, in itself, was a key part of the United States’ proper role in world affairs. In his book Rogue Ambassador: an African Memoir he writes “I told Raila it was untrue that the U.S. would not accept because of his leftist past his father’s election as president if he won freely, fairly, and lawfully. The mistakes of thirty years ago were water over the dam. Raila said he had never believed otherwise.” After Hempstone’s term ended in 1993, however, active U.S. interest in supporting democratic opposition to Moi waned.

Just as Hempstone did not think there were major ideological differences between the opposition candidates in 1992, the USAID officials that I spoke to in the run up to the 2007 election did not see major ideological differences among the opposition contenders or between Raila as ODM nominee and Kibaki. Nonetheless, the U.S. through Ambassador Ranneberger took a pro-Kibaki stance toward the election (this was not just my direct experience “on the ground”, but also the perception of one of America’s leading Africanists and Kenya experts who said on a panel at the African Studies Association last fall that he was convinced that the U.S. had supported Kibaki).

In their January 2009 New York Times story on the exit poll and election controversy, Mike McIntire and Jeffrey Gettleman wrote:

Despite initial economic successes and popular support after his election in 2002, Mr. Kibaki had gained a reputation for playing divisive tribal politics, and his administration had become tainted by scandal. Still, he had a good relationship with the Bush administration and generally supported American counterterrorism policies in East Africa.

Mr. Odinga was viewed skeptically by some in Washington because of his flamboyant manner and his background: he was educated in East Germany and named his son after Fidel Castro.

At the same time, then-Assistant Secretary of State for African Affairs Jendayi Frazer, now with the Whitaker Group lobby firm and Carnegie Mellon University, was by reputation thought of as close to the Kenyatta family. Uhuru, however, was named in the Waki Commission report on the post-election violence as a suspect in playing a role in supporting revenge attacks by tribal militia and he is said to be likewise a key suspect in the current International Criminal Court investigation on this basis.

Ironically the Washington Times was conspicuous in publishing 2008 attacks on Raila Odinga, and linking him to Obama and the U.S. presidential race. Now, Glenn Beck attacks the new Kenyan constitution and Dinesh D’Souza and Newt Gingrich are attacking President Obama for being linked to his father who was of the same “tribe” as Oginga Odinga (even though Obama, Sr. was part of the U.S. government “airlift” to study in the United States while Raila is criticized for having studied in the Eastern bloc).

Looking ahead to a 2012 race in Kenya, during the 2012 race in the United States, if the Kenyan contest comes down to Raila Odinga versus Uhuru Kenyatta, with rich “class” and “tribal” subtexts understood by few Americans, what will the United States and other Americans do officially and unofficially? Will we prioritize democracy?; stability?; some notion of ideological compatibility?; some particular policy objective? And where does the issue of the post-election violence and the ICC fit in?

 

True Colors–Kenyan Justice Minister calls on ICC to drop prosecution of Post-Election Violence

This strikes me as a classic “bait and switch” from the Kenyan political establishment to the international community.

Kenya’s Justice Minister says at this late date that because Kenya will be reforming its judicial and police systems under the newly passed Constitution, the ICC is no longer needed and should “keep off” as Kenya can now prosecute the post-election violence itself. I cannot imagine who would be expected to take this argument seriously. Certainly no one that has been paying any attention to Kenya for the past few years.

Presumably the real argument is that “because we have allowed Kenyans to pass this wonderful new Constitution–that you, international powers wanted more than we did–you owe us a pass on the post-election violence–just like you gave us a pass on the election fraud because we agreed to a “government of national unity”.

As with the election fraud, there is a real question here for the United States: how much do we want to know and when do we want to know it? The ICC is at best only going to try a tiny handful of suspects–most killers and their sponsors will not be directly touched. The ICC’s ability to gain convictions is not a foregone conclusion. Trials, however, would be public and would let the Kenyan public–and the international public–hear details of what happened. The United States has claimed to have quite a bit of information about the post-election violence. Presumably this is the case with the British and the other European players. To date, we have supported the ICC process lukewarmly as a substitute for the local tribunals that we preferred but the Kenyan leadership refused to approve. Where are we on this now?

From the Saturday Nation, “Mutula to Ocampo: Quit Kenya Probe”:

A Cabinet Minister has launched a controversial campaign to stop the International Criminal Court from investigating and prosecuting post-election violence suspects.

Lawyer Mutula Kilonzo, who holds the Justice portfolio, claims that trial sought by the ICC chief prosecutor Moreno-Ocampo after he completes investigations in the next few weeks will be unnecessary when Kenya establishes a new judiciary, appoints an inspector-general of police, and installs a new director of public prosecution under the new Constitution.

The minister, whose docket is crucial to obtaining justice for the victims of the violence that broke out after the 2007 General Election, argued: “When these (appointments) are in place, we can say that Kenyan judges meet the best international standards. After that, I can even tell them not to admit the ICC case. Why on earth should a Kenyan go to The Hague?”

Unintended Consequence of al-Bashir Invite–more leverage for ICC on Kenya Post-Election Violence?

From Tom Maliti, Associated Press

NAIROBI, Kenya – Kenya on Friday allowed the International Criminal Court to open an office in the country, a development that comes after Kenya’s commitment to the court came into question when the nation hosted Sudan’s indicted leader last week.
ICC Prosecutor Luis Moreno Ocampo is investigating top Kenyan leaders and businesspeople for their roles in the country’s December 2007 to February 2008 post-election violence that killed more than 1,000 people.

On Friday, Kenya granted the ICC immunity from legal challenges, tax exemptions and other privileges in a letter signed by Foreign Affairs Minister Moses Wetangula.

The move comes only a week after Kenya hosted Sudanese President Omar al-Bashir during a ceremony for Kenya’s new constitution.

. . . .

Kenyan Cabinet leaders, including Wetangula, met with ICC Registrar Silvana Arbia on Friday.
"We have agreed to comply with every aspect of the (ICC) request for the privileges and immunity which their officers require to be able to undertake their work," said Minister of State for Internal Security George Saitoti, who chairs the Cabinet subcommittee on the ICC.

"I trust that the government of Kenya will fully respect its obligations under the Rome Statute," which established the ICC, Arbia said after receiving the letter.

The ICC registrar has been in Kenya since Wednesday to seek government assurances it will cooperate with the court and educate the public about how it operates.

For a cautionary, but realistic view of where Kenya is a the moment, see the latest post from "Maina’s Blog", wherein Maina Kiai stresses the ICC status and throws cold water on the Truth, Justice and Reconciliation Commission:

Impunity and lack of accountability also needs to be addressed via the Truth, Justice and Reconciliation Commission, which is unfortunately now turning into a bigger farce than could have been anticipated! How a potential witness—in a negative way–can Chair the TJRC beats comprehension! How someone who is supposed to lead reconciliation can be so arrogantly obstinate boggles the mind. If Bethuel Kiplagat does not get what conflict of interest is, his competence and integrity as Chair are marred ab initio. Worse, he has now gone out and hired other potential witnesses as staff for the TJRC! Which means that these survivors—and a large majority have been on the margins of society precisely because of the violations they suffered–who are now staff will not be testifying at the TJRC as that would be another conflict of interest! What better way to destroy an institution, and weaken it before it starts than this?

Why be concerned about election violence with the Kenyan referendum?

It seems to me that there are several obvious reasons.

Most basic is the simple fact that since Moi relenquished de jure one-party KANU control, there has been significant violence in each national election that was close (the 2002 presidential election was a landslide and featured Moi fronting a Kikuyu standard bearer who was not strong in Central Province against a Kikuyu establishment figure supported by Raila Odinga–in other words, a sui generis “perfect calm”; likewise the 2005 Referendum was not especially close and followed the 2002 general.) The “usual suspects” from 1992, 1997 and 2007 are still in power in government and business and have ample resources available.

There has been no meaningful progress yet in regard to the “culture of impunity”. The Government of National Unity has not delivered a local tribunal to address the crimes layed out in the Waki Commission report. The ICC process is still hoped for, but has not resulted in indictments of anyone to date and the key people expected to someday face the ICC are very much players in the GNU today and will be for the forseeable future.

The “Truth and Reconciliation” process was politically stillborn in terms of doing anything that would have changed the dynamic of tension for this election.

The Waki Commission report shows that the Kenyan intelligence service knew about significant issues of likely planned violence ahead of the 2007 election, but action was not taken to stop it. No explanation of this has been provided, nor are there obvious reforms implemented to make sure that the same situation (whatever it was) is not repeated.

Corruption is more entrenched than ever, in the sense that no real action has been delivered in response to even the new, and in some cases, particularly outrageous scandals coming from the Government of National Unity–much less anything about Goldenburg and Anglo Leasing and all the many, many other scams that have created pools of ill gotten gains that can be reinvested in politics as needed.

Even the newspapers have reported ethnic threats in the Rift Valley, and ethnic rhetoric is clearly being employed. To the baseline of ethnic tension, and ethnic division within religious groups that was a problem in 2007 has been added an increase in tension between many churches and the State over views or interpretations related to the khadi’s courts and abortion. These is always some baseline of tension between many Muslims and the State, but now there seem to be attempts to drive a much greater wedge between Muslims and Christians themselves at a grassroots level.

I could go on.

To top it off, it was clear by last fall that there was a significant ramping up of the flow of guns and ammunition into areas where there had been violence featuring more “traditional” weapons in 2008. And six people were killed by two grenades in Uhuru Park as the campaign kicked off.

This is not a prediction of violence–but rather an assessment that all the necessary ingredients are there. By all means we should hope for the best and pray for peace. But we should also be mindful of the danger and the United States as a major donor and “ally” should not be caught off guard. We know how much suffering election violence can cause. Foolish complacency is the hobgoblin of little hearts.

As Vote Nears, Former Deputy Commander of Kenyan Administrative Police continues in hiding

As the Kenyan constitutional referendum approaches, most other aspects of the “reform agenda”, in particular accountability for wrongdoing in the last election, remain stymied. The Internal Security portfolio has passed from John “Rattle the Snake” Michuki, who continues in Cabinet as a key insider, to George Saitoti, another of those who seems a conspicuously odd choice of partners for anyone promoting reform in the security services.

From the Nairobi Star via All Africa.

Nairobi — GOVERNMENT is about to dismiss a key potential witness for the International Criminal Court.

It has written to Oku Kaunya to show cause why he should not be fired as Nyanza Deputy Provincial Commissioner.

In December 2007 he was the Deputy Commandant of the Administration Police and Commandant of the AP Training College in Embakasi. He had originally been scheduled to take over from AP Commandant Kinuthia Mbugua in 2008.

It has been alleged that the Administration Police was partly responsible for the mayhem that followed the December 2007 elections.

Kaunya left Kenya in April this year and has not returned. It has been rumoured that he will be a key witness for ICC prosecutor Luis Moreno Ocampo.

Government has taken Kaunya’s absence from work as desertion from duty which, according to the Civil Service regulations, is punishable by summary dismissal.

Sources in the Office of the President, to whom the Provincial Administration answers, told the Star that the letter was written in mid-June and sent through the Post Office.

Internal Security assistant minister Orwa Ojodeh confirmed yesterday that Kaunya had deserted duty and clarified that any communication sent to him was in line with government policy.

“If government officers desert duty as he did, then they have to give an explanation,” said Ojodeh.

The minister however said he could not confirm whether government had formally written Kaunya.

After receiving death threats from unknown people, Kaunya slipped out of Kenya in April claiming he needed medical treatment for a kidney problem. His whereabouts remain unknown but he is believed to be in Europe.

He may turn out to be a key witness should the International Criminal Court try the perpetrators of the post-election violence.

Kaunya headed the AP Training College which, according to the Waki Report, was a central link in the disruption of the December 2007 election.

The Waki Report said 1,600 officers were sent to the college for “special training” so they could act as election agents for the PNU.

“All officers deployed were dressed in plainclothes, easily identified as they were not from the local community and travelled in large groups by more than 30 chartered buses,” the report said.

“In addition, they received Sh21,000 each for their duties. The entire exercise was called off after some officers were killed and many more injured by citizens,” the Waki Report concluded.

Investigators from the office of ICC prosecutor Ocampo have been in Kenya and they are expected to finalise their investigations in October before Ocampo can ask for the ICC to issue arrest warrants for the key suspects.

As many as 20 witnesses whose testimony is considered crucial have been placed under protection. Several have been flown out of Kenya while others are being protected in safe houses in Kenya.

Yesterday Kaunya’s wife Millicent said the government was aware of her husband’s continued stay abroad and that she had not received any communication about his employment status.

“I have not heard anything so far but he (Kaunya) is out and the government knows why,” said the wife without revealing further details.

Ajaa Olubayi, Kaunya’s lawyer, said he last spoke with his client two months ago.

“I haven’t spoken with him for quite some time and I would not be in a position to say whether he has been asked to explain his absence from work,” said Ajaa

In April Kaunya’s wife said her husband had been feeling unwell and travelled to Germany for treatment from where he was to proceed to see their daughter in the USA.

In January 2004, while he was the Uasin Gishu DC, Kaunya called for the abolition of the Administration Police and the Provincial Administration.

He was supporting those delegates to the National Constitution Conference who wanted the Provincial Administration removed from the Draft Constitution that was finally defeated in the 2005 referendum.

Kaunya’s comments were surprising to the AP command, especially Commandant Kinuthia Mbugua who had waged a spirited battle to have the force retained.

In 2007 Kaunya was promoted to head the Administration Police Training College, a post that put him second only to Mbugua in the AP chain of command.

However in June 2008 Mbugua interdicted Kaunya for putting on the rank insignia of the AP Commandant, apparently in preparation for the departure of Mbugua.

He eventually returned to his post in December 2008 but that did not end his tribulations.

Seemingly to ensure he did not testify to the Waki Commission in early 2009, Kaunya was sent for an impromptu “holiday” in Thailand.

When he returned, he was given a scholarship to the Karen-based National Defence College from which he graduated last December.

Sure, we can hope for responsible behavior by the political powers that be in Kenya in the referendum–but to expect it under the circumstances would certainly be foolish.

Here is the link to “Divide and Rule: State-Sponsored Ethnic Violence in Kenya” by Human Rights Watch from 1993, featuring discussion of then-Vice President Saitoti, who was given the Internal Security portfolio by Kibaki in January 2008, during the post-election violence and before the mediation deal ushering in “the reform agenda”.

Marende praised by UN High Commissioner for Human Rights, meeting with Biden; South Mugirango by-election this week

Kenyan Speaker of Parliament Kenneth Marende seems to be getting an increased international profile. Navanethem Pillay, UN Commissioner for Human Rights, called on Marende on Monday, expressing concern regarding progress on prosecution of suspects for post election violence. According to the Standard she singled out Marende for praise, “saying he had made immense contribution in stabilising the country through some historic rulings and the manner he handled issues in Parliament”.

U.S. Vice President Biden will call on Marende Tuesday as well, along with his meeting with President Kibaki and Prime Minister Odinga.

Interestingly, Marende says that Parliament “would easily pass” legislation to provide for a “local tribunal” to try election violence cases under Kenyan criminal law “if the ICC acted swiftly by taking away key perpetrators of the violence”.

Biden will leave Thursday morning, the day of the South Mugirango by-election to fill the seat vacated by a successful election petition against Omingo Magara, originally of ODM. As it stands the race is hot, with Raila Odinga campaigning for the substitute ODM nominee, Ibrahim Ochoi, William Ruto campaigning for Magara running as a PDP nominee and heavyweights in PNU affiliates split among Magara and other candidates.

Kenyan Constitution and the Rule of Law

Most people that I have talked to expect the new Kenyan constitution to pass in the upcoming August referendum in spite of opposition from several church groups and politicians. This is also the view of the US-based consultancy STRATFOR in a new report on Kenya. The Synovate poll taken in late April showed a heavy balance in favor of a “Yes” vote, including among those who had disagreements with some specific points in the draft.

Looking ahead, the question may become, how much will the changes in the law really matter?

The Brookings Institution published an interesting study by Daniel Kaufmann  earlier this year criticizing the tendency to focus too much on the de jure rules of law rather than the de facto workings experienced in practice, citing the current situations in Kenya and the U.S. as examples:

First, consider Kenya in 2007. The main aid donors, led by the World Bank and the United Kingdom’s aid agency, DfID, tended to praise the governance reform efforts of the Kenyan authorities, including those on legal initiatives and anti-corruption.[1] Subsequently, in the run-up to the presidential elections, these top donors, also including the United States, flooded the Kenyan government with funds. Kenya’s government was even awarded a special international prize recognizing its good governance efforts.[2]

Elections were held a few short days after the last 2007 World Bank press release in Kenya, which announced approval of funding yet another project for the government.[3] The elections were widely regarded by external organizations, such as the EU, and by many Kenyans[4] as rigged, in what was the culmination of years of systemic political corruption that infiltrated key legal and judicial institutions. Civil strife erupted and the full extent of the breakdown of law and order was exposed at a dire cost—thousands of lives were lost and vast socio-economic damages were inflicted.[5] Yet, the main aid donors appeared to be shocked that such corruption, electoral mismanagement, and turmoil could take place in Kenya.[6]

Around the same time and half the globe away, some rule-of-law institutions were being quietly undermined inside the world’s superpower: the United States. In April 2004, amidst euphoric financial sector growth, a meeting was held in the basement of the Securities and Exchange Commission (SEC).[7] The top executives of the main Wall Street investment banks gathered to weigh in on proposed SEC regulations that would relax restrictions on their investment houses.[8] A scant 55 minutes later, the investment bankers emerged with SEC approval; the new regulations exempted the investment groups from the leverage restrictions that apply to commercial banks, allowing the banks to massively expand their debt.[9]

In return for the green light to an enormous expansion of indebtedness, the investment banks agreed that the SEC would have more oversight over them, for which a special unit would be formed.[10] In practice, the oversight did not take place. In fact, the head of the SEC never created or staffed any such oversight unit.[11] The resulting financial debacle that followed is now well known. What is insufficiently appreciated is the fact that various manifestations of “soft” and “hard” forms of regulatory and legal capture by the elite financials were a factor leading to the crisis.[12]

There are many salutary features in the draft constitution, on paper, but the real question will be making them work in practice. Rule of law will crucially depend on reform of the police, consistently rated as among Kenya’s most corrupt institutions, as well as better access and more effectiveness in the court system.

The outstanding issue of prosecutions for post-election violence is a good immediate test. ICC prosecutor Luis Moreno-Ocampo is in Kenya now, and is said to have informed the government that he will seek to bring two cases against three key individuals each, in the Hague in the September-October timeframe. The government continues to pledge cooperation, but continues not to take specific steps to effectuate the law passed by Parliament to provide for witness protection.

Continuing Witness Fears as Ocampo due in Kenya Saturday

ICC Chief Prosecutor Louis Moreno-Ocampo will spend five days in Kenya, including visits with victims and to areas most affected by post election violence, and a public question-and-answer session, along with civil society, religious and business groups. He has also offered to meet with those who believe they may be unfairly identified as suspects.

In the meantime, the EU envoys have spoken out against a continuing climate of fear for potential witnesses. A variety of reports indicate a pattern of intimidation and threats against prospective witnesses, and concerns have been raised about leaks of witness identities from within the Kenya National Human Rights Commission which has done much of the initial investigative work on the violence. A former senior official of the Kenyan Administration Police is said to be among those who have fled the country for safety in the absence of an effective witness protection program in Kenya.

The Indian Ocean Newsletter reported that Deputy Prime Minister and Finance Minister Uhuru Kenyatta hosted a meeting with Ministers William Ruto and Najib Balala at his Nairobi residence April 4 “to agree their stories for the ICC.”

Nairobi Star: Possible ICC suspect list leaks

From allAfrica.com, the Nairobi Star reports that they have obtained a leaked list that appears to be a working document from the ICC prosecutor’s office from last fall identifying people who may be subject to investigation by the prosecutor in relation to Kenya’s post-election violence.

The Star does not name names, but includes basic descriptions and categories, some of which become fairly obvious.

“Tea party pokes fun at Obama’s rivals”–Daily Nation

Tea party pokes fun at Obama’s rivals

Kenyan Tea Party–a fun public relations idea for DC–just too bad that they would pick as their Kenyan headliner one of the prime reputed suspects in the current ICC investigation.