Jubilee at 1; Kenya at 50 1/4

Half a Crossing

Africa Confidential‘s free article this month gives the best overall summary of the state of the Kenya government a year after Uhuru and Ruto took office, “A Year of Living Precariously”

Crime, inflation and grand corruption have risen sharply in the last year. Expectations of an economic take-off have dimmed since the cheers that greeted Kenyatta’s disputed election victory. The government has incurred new debt and inflated the public wage bill against a background of falling tourism revenue – the result of the Westgate terrorist attack and Islamist activity on the coast. Beside concern about loans from China and elsewhere, mostly for infrastructure expansion, there are worries about the growing cost of the new, devolved counties.

As for the environment in which to address these challenges, AC says “the politics of sycophancy reminiscent of President Daniel arap Moi’s era [are] now in full flow”.

Of course the most immediate critical issue on the referenced infrastructure projects involving Chinese loans is the construction of a new, “from scratch”, Standard Gauge Railroad. Renowned Kenyan economist David Ndii here explains why the project is far too expensive to make economic sense in lieu of renovating the existing railroad:

Part of the other side of corruption and maladministration in Kenya’s fiscal crisis is exposed in a gutsy report from The Standard this week, “Revealed: How Karuturi got away with denying Kenya millions in taxes“.

And from the National Endowment for Democracy’s Democracy Digest: “Kenya Declares Human Rights ‘Subversive'”.

“Do not be afraid. The government will protect you.” KANU Revivalists offer alternative to democratic values in Kenya

Shortly after I arrived in Kenya in mid-2007, Kenya’s parliament passed a media regulation bill which faced a storm of international diplomatic criticism as well as domestic protest.

President Kibaki at the time backed down and sent the bill back to Parliament where it was ultimately somewhat watered down. New legislation passed last week goes much further than what was dared under the first Kibaki Administration, in spite of the new constitution. This time there doesn’t seem to be much reaction from international governments–we give our aid money quietly and tiptoe so as not to step on important toes since we have been aggressively accused of imperialism and racism for not intervening to stop the ICC prosecutions of The Now Elected for the mayhem after the 2007 election–but the international media is much more aware of these issues than they were in 2007.

And if the media bill has been put in some limbo, it has been followed by the introduction of the Jubilee bill to assert more state control over civil society and restrict and channel foreign funding to non-governmental organizations. The Uhuruto team had not shown its cards on attacking the media during the election campaign, but civil society was always a known target. See Attacks on Kenyan Civil Society prefigured in Jubilee Manifesto, my post from March this year.  More freedom for the media and for civil society means more restraints on politicians in control of government.  Restricting civil society can help maximize the opportunity to control the media, and vice versa.

Kenyans are confronted once again by the hard choice of whether they are willing to challenge their “leaders” in governmental power to maintain their individual freedoms as citizens.

Uhuru Kenyatta stayed with KANU throughout his life through the formation of TNA as a vehicle for his presidential campaign in this year’s race.  Other than running in elections himself, he has not given much indication over the years that I am aware of being concerned for opening the democratic space and by running as “Moi’s Project” as the KANU nominee in 2002 he chose the old banner.  Of course when you are one of the richest men in Africa, and your mother is one of the richest women, because of what your father took for himself and his family when he was the one-party ruler, you find yourself with plenty of freedom of speech and freedom to politically organize regardless of the details of the system that confront the small people.

In the wake of the Westgate attack, and the desire of the government to avoid scrutiny or challenge, I am reminded poignantly of what Kibaki said when he first ventured out thirteen days after he had himself sworn in for his second term:

January 9, 2008–13 days after the 2007 election (NBC News):

Kibaki made his first trip to a trouble spot, addressing more than 1,000 refugees in western Kenya, many of whom had fled blazing homes, pursued by rock-throwing mobs wielding machetes and bows and arrows.
“Do not be afraid. The government will protect you. Nobody is going to be chased from where they live,” Kibaki said at a school transformed into a camp for the displaced in the corn-farming community of Burnt Forest. “Those who have been inciting people and brought this mayhem will be brought to justice.”
He indicated he would not consider demands for a new election or vote recount.
The election “is finished, and anybody who thinks they can turn it around should know that it’s not possible and it will never be possible,” he said.

Perhaps for those Kenyans that feel sure that the government will always protect them, there is no need for these things of a free media, civil society, the questioning of elections.  Kenya could just go back to the Chinese model of the one party state.  Kenyans who prefer a freer, more empowered citizenship as a matter of values, or who don’t feel they can count on the government to always protect them will have to decide to engage to protect those rights which are of course expressed in law in the new constitution.  See “CIC (Commission for the Implementation of the Constitution) says new media law unconstitutional”, Daily Nation.

Kenyan Media

Kenyan Media

Listening . . .

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Waterbuck

Please excuse my lack of posting. I am taking extra time to read and listen.

In case you missed it, here is Joel Barkan’s list from Foreign Affairs, “What to Read on Kenyan Politics”.

And from AfriCOG: “Why Westgate Is About Governance But Not Security Or The ICC”.

Canadian High Commissioner misses the point in warning Kenyan politicians about ICC pullout

A diplomat has warned that the move last week by law makers to have Kenya pull out of the Rome Statute could jeopardise future search for international justice for Kenyans.

Canadian High Commissioner in Nairobi David Angell said pulling out of the Rome Statute, that established the International Criminal Court (ICC), would deal a blow to any future victims of violence that Kenyan judicial system would not handle.

“Canadian envoy warns in Kenyan ICC pull-out” Daily Nation

What search for international justice? Kenya’s last Parliament did not follow suspect William Ruto’s “Don’t be vague, go to The Hague” lead out of a preference for “international” justice over trying the suspects locally–rather it was an excuse for not prosecuting anyone themselves. Likewise the last Parliament did not then turn around and vote in December 2010 to withdraw from the ICC as soon as the charges came down against Ruto, Uhuru Kenyatta, Sang and the three others in consideration of the interests of “justice”. If the members of Kenyatta and Ruto’s Jubilee coalition who voted again to withdraw from the ICC on the eve of Ruto’s trial were in the least concerned about a “search for international justice” for victims of election violence–past or present–they would not have done so.

Kenyatta and Ruto as KANU leaders were on the side of election violence in Kenya in 1992 and 1997 and they certainly have not done anything to express remorse or “search for justice”–international or otherwise–for the victims. The very idea that there should be such a search for justice for victims of electoral violence is an affront to the political order in Kenya and on this Kenyatta and Ruto can easily circle the parliamentary wagons against the threat to their private sovereignty and that of their cohort.

The High Commissioner ought to appreciate that he is speaking to an audience which has, over many years, shown that it takes these thing deadly seriously. If the Canadians want to step into the current diplomatic vacuum in Nairobi to address the situation, I certainly applaud the intention, but they if they want to have influence they need to speak of things that their audience cares about.

Two “must reads” from Kenya ahead of the opening of the PEV trials at the ICC

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“Why Uhuru and Ruto must attend trials in The Netherlands” by George Kegoro in the Daily Nation.

.  .  .  .
I have found possible answers to this question in the record of the first presidential debate that was organised by the Kenyan media in the run-up to the March elections. The moderator, NTV’s Linus Kaikai, explored the question of the trials with Mr Kenyatta against the fact that he was seeking to become president of Kenya. Specifically Mr Kaikai wanted to know how Mr Kenyatta would juggle between attending his trial and the duties of presidency if he was elected to office.

On the night, Mr Kenyatta provided well-considered answers to questions surrounding their cases and the presidential bid. Referring to himself and his running mate Mr Ruto, Mr Kenyatta indicated that “it is our intention to follow through [the cases] and ensure that we clear our names”. He added that he considered accountability before the ICC as a necessary step towards ensuring that the kind of problems that Kenya faced in 2007 would not recur.

In his own words: “At the same time, we are offering ourselves for leadership in this country, a position that we believe and want to pass on to Kenyans, an agenda that will first and foremost ensure that the kind of problems of 2007 are put to an end.”

Asked whether the cases would affect his capacity to run the country, he said, “many Kenyans are faced with personal challenges and I consider this as a personal challenge”.

He said he considered that since personal challenges did not affect the capacity of other people to continue with their day-to-day jobs, they should not prevent him from doing so as well.

On that night, Mr Kenyatta concluded: “I will be able to deal with the issue of clearing my name while at the same time ensuring the business of government is implemented”.

Earlier, during the same debate, in answer to a question about his understanding of the problem of tribalism and how he would be different from Kenya’s first three presidents, Mr Kenyatta answered that “we have a new Constitution now” and added that “my job as president is to ensure that the Constitution is implemented”.
.  .  .  .

Kenya Bus Service (KBS) and Security at Polling Place

“The Eagle Has Landed: Kenya and the ICC” by John Githongo in The Star.

. . . .

. . . History is being made.

The ICC has redefined Kenya’s foreign policy totally and turned domestic politics inside out. Immediately after the post-election violence in 2008, Kenyans were clamouring for the ICC to intervene given the horrors that had just taken place.

Accountability, justice, impunity, reconciliation and other such words were the primary fodder of political discourse as we headed into the referendum on the constitution in 2010. Indeed, it can be argued that even among those most strongly opposed to the new constitutional dispensation, the dark looming cloud of the ICC and all its implications, especially the public mood that accompanied it through 2008 into 2010, all served to soften them up to demonstrate their pro-change, reformist credentials at a time when the country’s leadership and the messy albeit negotiated coalition arrangement was particularly unsatisfactory to the population.

If it hadn’t been for the ICC, perhaps more of the so-called ‘watermelons’ who pretended to support the new constitution while secretly being opposed to it, would have come out into the open with their true position.

.  .  .  .

. . . Parts of the Kenyan population are in just such a trap: caught between our preaching about and, yes, belief in, good governance and accountability; and its realities when brought to bear in our tribalised, politicised and fragmented political economy. Grimly put – ‘it hurts like hell when it is my tribesman who is being held accountable’. It hurts so much it leads to some of the most gibbering rationalisations of absurdity possible.

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“Choosing Peace Over Democracy”

“Kenya’s 2013 Elections: Choosing Peace Over Democracy” has been published in the new Journal of Democracy by James D. Long, Karuti Kanyinga, Karen E. Ferrer and Clark Gibson.  Important and worthwhile reading for anyone interested in Kenyan politics or democratic process in Africa or the developing world more generally.

This is the first of formal publications using the exit poll and other polling data that were presented by Professors Gibson and Long at Johns Hopkins’ SAIS on May 2 and widely covered in the Kenyan media.  See my post with the video:
“Fraud and Vote Patterns in Kenya’s 2013 Election: Evidence from an Exit Poll”–Gibson and Long event in Washington Thursday.

Long and Gibson were the researchers who also carried out the 2007 IRI/USAID/UCSD Kenyan exit poll that showed an opposition victory.

Voting Procedure

I am concerned that a move by the ICC to try Uhuru, Ruto and Sang “locally” would needlessly cost additional lives

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The Kenyan government, after years of lack of success in its various diplomatic efforts to block the ICC prosecutions of key figures in the political killings involved with the 2007-08 elections, achieved a potential breakthrough at the most recent AU meeting in Addis.  By getting a section of African strongmen and politicians to agree that the ICC shoe that they had promised to wear was pinching too tightly when it was not deferring to them as Heads of State as opposed to only pursuing lessor suspects out of power, the Government of Kenya raised the stakes for those nations that advocate a law-based international order and for the ICC as the only institution that remains with any potential to substantively express any tangible disapproval of the post-election murder and mayhem in Kenya in 2007-08.

It is in this context that the ICC will have to decide whether or not to accept a panel recommendation to move the trials from The Hague to Kenya or Tanzania.

Let me say that I am no fan of the decision to locate the ICC in The Hague in the first place.  Nothing against the Dutch and I do understand that The Hague has symbolism as a seat of the international law of nations.  Of course the criminal trials of individuals is something quite different and if anything in some ways undercut by the association.  We are confronted now with a situation in which the indictees have taken power in a member state–in a campaign initiated in the context of their defense to the ICC charges–and wish to avoid trial by mutating the individual criminal charges into a matter of the international relations of sovereign states.

So by all means move the Court to Botswana or Belize or some other more suitable location when it becomes logistically rational to do so, but these trials are supposed to be about the loss of life and limb in the “extra-electoral” context of the Kenyan fight for political power and it makes no sense to physically conduct the trial in such a way as to put more lives in the same type of jeopardy.

First, as a general proposition, witnesses against the President and Deputy President will never be able to live in safety in Kenya for any time in the foreseeable future after being identified and choosing to testify (they may wish to accept the danger of living in Kenya after testifying but this should not be asked or expected of them); this is the cold reality that should be readily evident to anyone who has paid attention to politics in Kenya over the years.  If it is understood that witnesses cannot testify in Kenya then why split up the trials over more than one location?  This process has already taken too long to no one’s benefit and supposedly the ICC has problems with resources and funding and a big backlog of cases already.

Second, estimates of the loss of life related to the most recent Kenyan elections with all priority on “peace” or stability over all else were still more than 500 people.  The police made extra-legal pronouncements restricting lawful civic expression and assembly; the country was basically shut down, the military was deployed and people were shot for breaking no law.  A trial in Kenya would be extremely expensive and quite dangerous by any informed reckoning.  The suspects on trial would be in charge of the “security” forces.  How many innocent lives will be lost for this?  No one can know ahead of time but it is grossly irresponsible not to count on some people who have no role in the trials dying for holding them in Kenya.

The whole point of the ICC is that it is “international”.  Thirty three other nations in Africa beside Kenya are members.  The reason for these cases being at the ICC was the tactical decision to vote in the “duly elected” Kenyan Parliament to “don’t be vague, go to The Hague.”  If “The Hague” no longer has the stomach for this, they should declare now that the task is too hard and walk away and make clear that Kenya, in spite of the work of the Waki Commission arising out of the AU-sponsored 2008 post-election settlement and the vote of its own parliament, is a zone of impunity, at least for suspects who arise above a political ceiling on potential accountability.  Otherwise, these trials need to be brought to fruition and be heard and appealed and done with purposeful speed and as few diversions as feasible.

We all know that the crimes alleged happened.  We saw them and heard them and see and feel their effects today.  Those of us who lived through this time in Kenya heard various bits and pieces of the details as these things were happening.  If the suspects or any of them are tried and acquitted then anyone who believes that they are in fact innocent of the roles alleged can celebrate that and all of us can finally mourn justice for these crimes along with the dead.

Famed photojournalist Mo Dhillon responds to AU on the ICC trials: “African Unity leading Africa towards disaster”

Sir Mohinder Dhillon, renowned Kenyan photographer, photojournalist and filmmaker shared this new essay which he also submitted to the ICC judges:

“GADDAFI AND MUSEVENI”
Gaddafi and Museveni

African Unity leading Africa towards disaster.

I’d like to challenge the AU to tell me which tribunal or judiciary in Africa will ever convict a sitting Head of State. This attempt to renege on a commitment to the ICC is nothing more than a sinister plot by Africa’s dictators to save themselves from any kind of accountability. It was initiated by the late Colonel Gaddafi, who bailed the AU out of a financial crisis, thereby buying the loyalty of other African leaders whose necks were also on the line. To save himself from international justice, he wanted Africa out of the reach of the ICC. Shame on such leaders! Contrary to any suggestion of restoring national sovereignty, the aim of these people is for Africa to be out of the Rome Treaty so that they can continue with their evil intentions where money and power counts for everything and the ordinary African can rot.

Our memories in Africa are very short, particularly in the case of perpetrators of genocide, rape and murder. Those who support the AU line that accused Kenyans should be tried locally should remember that not so long ago Parliament and other local bodies preferred to hand over cases to ICC. Remember the slogan that was on the lips of all Kenyans:  “Don’t be Vague, Ask for Hague”. Kenya was given 12 months to put their act together and they did not move an inch. Kenyan authorities were going to investigate several thousand of other perpetrators but none was investigated due to lack political will despite some of perpetrators were recognizable carrying out crimes against humanity. AU is becoming laughing stock in promoting impunity.

The early history of Kenya’s ICC cases seems already to have been forgotten. After the post-election violence in 2008, the Peace Accord appointed the Waki Commission which produced 529 pages report on 16 July 2009 along with 6 boxes of documents and supporting material. A sealed envelope containing names of those considered most responsible for the violence was given to Kofi Annan as mediator.   Kenyan Government tried for one year to establish a local tribunal but parliament blocked this, leading to the involvement of the International Criminal Court.  The ICC Prosecutor, Luis Moreno Ocampo opened the envelope, inspected its contents and re-sealed it, before proceeding at Kenya Government request to carry out investigations and develop the resulting cases for ICC.

Kenya must smell the rat behind the intentions of our neighbours in Ethiopia, Uganda and Sudan, who are guilty of gross human rights violations in their own countries. Most recently, these include muzzling the media and arresting journalists and civil rights workers, but there is a long track record of crimes against humanity in each country. The AU has failed miserably to bring the perpetrators to book, as have the local judicial systems.

Until fifteen years ago, I filmed all the OAU meetings since its inception in 1963. For most of that time, the fight against apartheid in South Africa was the only factor that held this organisation together – otherwise I’m sure it would have disintegrated. It is a matter of record that crimes against humanity on the rest of the continent have far outweighed the evils of apartheid both in terms of scale and sheer lack of accountability. Why the double standard?

It is abundantly clear that most of Africa’s leaders are more concerned with protecting themselves than they are with securing justice for ordinary people. Although we in Kenya have made enormous strides in securing personal freedoms over the last twenty years, I am deeply concerned about the negative influence of our dictatorial neighbours in Uganda, Sudan and Ethiopia, where media houses are being closed down for flimsy reasons, where opposition is not tolerated and large numbers journalists and activists languish in dungeons without being charged. Kenyan genocide victims need closure just like the victims of Charles Taylor in Liberia, where the ICC was applauded for a job well done. There can never be adequate compensation for loss of life, limbs or dignity but at least some measure of justice was served.

Members of Kenya’s Government are shouting empty slogans about protecting their sovereign rights, in complete contradiction of their earlier position. I trust that the Kenyan people can see for themselves the total insincerity of those who are driven by nothing more than fear for themselves, and total disregard for the victims of violence. . . .

Here is the whole document: African Unity leading Africa towards disaster (5)

 

“The West” is not a Country either–the U.S. and U.K. do not have the same interests in Kenya

The Star reports that:

President Uhuru Kenyatta is set to hold talks with UK’s Prime Minister David Cameron during his three day visit, the first to a western capital since his election.

Human rights activists in the UK are reportedly organising to hold demonstrations to protest what they say is a ‘hypocritical manner’ manner in which the British government has made a U-turn against in its stand towards the Kenyan government.

In the U.K., unlike in the U.S., the Kenyan election stirred a significant discussion in the national legislature, in this case the House of Commons. Here is the link to the Hansard or transcript from March 20.

The biggest difference in interests is that Kenya, a British colony within the lifetimes of current political leaders, is important to the British economy. Kenya is not very important to the U.S. economy. It might be someday, and the U.S. would notionally like to be more engaged economically in East Africa, and not only because the Chinese are; nonetheless, as of today the level of trade and investment is not a higher order immediate interest for the United States.

Further, in the global system that the U.S. has helped create, the U.S. does not really have the same relationships to even the largest companies that may be headquartered in the U.S. as the British and some other European nations still have with their business champions. Not to say that the State Department doesn’t want to sell Boeing v. Airbus, but there is no American equivalent of BAE, for example. Further, it is British rather than American companies that are the key players in Kenya in banking and finance, tea, horticulture, tobacco, printing, public relations consulting, etc.

As of the last few years, roughly 60% of the roughly 5,000 Americans living in Kenya, according to the State Department, were connected to missionary work. The British, not as much as far as I know. Moreover, there are perhaps five times as many British passport holders in Kenya as Americans.

The United States has a reported official established presence of more than two dozen federal agencies in Kenya, so we do have interests, but they are heavily weighted toward “global” security matters, along with international crime/drugs, etc., and what we might call diplomatic and security logistics. In other words, it is convenient for people to locate in and transit out of Nairobi to support a variety of functions that don’t relate uniquely to Kenya. Its an easier place to fly in and out of and has lifestyle appeal, along with being a locus of the same type of thing for people in other agencies, from other governments and international organizations. It is not that this geographic interest doesn’t matter, its just that it really is not of first order importance. A lot of the aid programs that we conduct in Kenya could easily be moved to other countries that are even more in need if less convenient, for instance.

When al Qaeda wanted to attack Americans and U.S. interests in East Africa, they bombed our Embassies in Kenya and Tanzania–not some critical infrastructure or something or someplace else that the Embassies are there to protect.

Kenya is a tourist destination with direct flights of modest duration from the U.K., but still no U.S. direct flights. In the U.S., Kenya is on the tourism “map” along with other various other locations in Africa, but at a much lower relative level; the British are Kenya’s greatest source of tourists. The British newspapers cover Kenya in a completely different way, and to a much greater extent, than American papers.

I have referred to Kenya as Americans’ favorite African country, but this is within the context of the whole “Africa is a Country” perception problem. It was one of the British princes who had the bad form to be quoted to the effect that “Americans don’t do geography”. The British still know their way around their former empire and distinguish Kenya from its neighbors much more readily than do Americans.

Certainly the British MPs wax eloquent about the key importance of training the British military in Kenya, noting that this was said to have played a major role in allowing Britain to mount its Falklands Islands operations some thirty years ago. Of course, realistically, the UK military in this century is primarily derivative and it is hard to see that the world would be so much different if the British had to train in one of the other former colonies–the U.S. for instance–instead of in Kenya. Military training in Kenya is surely good for British political and military morale, but i think it is the economic issues that really make Kenya uniquely important for the UK, whereas for the U.S. the scales tip overwhelming to the “security” direction.

Obviously the International Criminal Court is another area of difference. The British are members, along with other Western European nations, whereas the U.S. is with the Chinese and Russians in standing outside (whether we are nominally favorable or nominally derogatory seems to depend on which of our parties is in power but we seem to have a fixed commitment to stay out). In this sense, the election of Uhuru Kenyatta and William Ruto is in one particular respect inconvenient for the British in a way that is not as challenging for the United States, but given the ordinary primacy of the specific over the general, and the immediate dollar or pound over longer term security in democratic politics, it is not really surprising that the UK has been more aggressive and quicker in seeking publicly to “get right” with Uhuru Kenyatta following his elevation to the Kenyan Presidency than has the United States.

Will Kamlesh Pattni’s court victory encourage Uhuru and Ruto on ICC cases?

"Magnate"

Obviously this is an irreverent question, and not the sort of thing that could be countenanced in academia or in diplomatic circles. But I just couldn’t help myself since I write about practical realities in politics and governance here, while watching the podcast of Maina Kiai and Joel Barkan discussing the “Implications of the Kenyan Election” @NED and a question from the audience has inquired about the latest Pattni ruling.

Last week we learned that Kamlesh “Paul” Pattni, one of Kenya’s wealthiest “men of business” (not like Uhuru, apparently, but very wealthy) had been the beneficiary of a big legal breakthrough as the media reported that High Court Justice Joseph Mbalu Mutava had ruled back in March that Pattni could not be prosecuted in the trial courts for the notorious Goldenberg corruption scandal.

“Judge defiant after clearing Pattni of Goldenberg scam”

The judge also observed that the report by Commission of Inquiry chaired by former Court of Appeal judge Samuel Bosire on the scandal on which the existing criminal case was anchored is flawed and that most witnesses had died or their memories have faded.

Pattni moved to the High Court in August last year seeking to quash the criminal proceedings at the magistrate’s court and stop the State from further criminal prosecution on the scandal estimated to have cost Kenya billions of shillings.

On Pattni’s prayer that the media be barred from reporting on the case, the judge said that the court could only intervene to set parameters of reporting to protect someone’s rights.

Last November, Justice Mutava’s conduct was put to question in a petition filed against him by Havi and Company Advocates on behalf of the International Centre for Policy and Conflict (ICPC). It sought to have the judge removed from office over his handling of the Pattni cases.

ICPC had argued that the whole matter had not been handled through the correct procedure and some court orders made were outside of the law.

The petitioner had faulted the judge’s handling of the case and accused him of being part of “an orchestrated cover-up to aid and abet Pattni’s criminal conduct”.

Justice Mutava was later transferred to Kericho from where he wrote the controversial judgment on Mr Pattni’ application for the case to be scrapped.

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