Astonishing Kenya!

Kenya, a country of stunning physical and cultural beauty, continues to astonish. Barely three years after emerging from what Professor Michael Chege, UNDP advisor on International Development Policy describes as “our worst political crisis since the Mau Mau era”, (The 2007/8 post election violence) the country appears to have made not only a full recovery, it has carried out root and branch reforms of virtually every aspect of public life. Our editors Anver Versi (of African Business) and Baffour Ankomah (of New African) spent two weeks in Kenya in October preparing this Special Report. What they discovered was the largely under-reported story of perhaps the most extraordinary transformations in the history of modern Africa.

The scale and the scope of the reforms that Kenya has undergone in the past three years is unprecedented in the history of modern Africa, if not the world. The speed and thoroughness with which this has been achieved has been breathless!

The national economy, which had been chugging along happily at around 7% from 2002 when President Mwai Kibaki’s National Rainbow Coalition (NARC) government replaced President Daniel arap Moi’s era, had dropped into the basement following the shocking post-election violence of December 2007/January 2008. Yet this year, it is back up to around 5%, despite a two-year drought that played havoc with the country’s food stocks.

The world has become used to watching Kenya’s middle and long distance runners winning every international race they enter; we now have to acknowledge the people of Kenya as great champions themselves. When they realised that the ship of state was in very dangerous waters, they abandoned their differences and set about rescuing it.

But everybody agrees that the job is only just beginning. Kenyans cannot afford to go back to the bad old days, the days of impunity, lack of respect for the law, wholesale corruption, and politics based on ethnicity.

These reforms are now enshrined in the country’s brand new constitution. Professor Said Adejumobi, chief coordinator of the UNECA African Governance Report, says: “This is a remarkable document. It was created from ground zero in the blink of an eye but it has everything you could wish for. I have no hesitation in saying this is the best constitution I have ever come across.”

At one stroke, the constitution completely overturns the entire political culture that has prevailed over Kenya since independence. It takes all encompassing power away from the Presidency and distributes it equitably around the country; it guarantees human rights and freedom of expression and association; it protects the rights of minorities and gives women equal opportunities, it uncouples the judiciary from government and makes it an offence to incite racial or ethnic hatred.

Ambassador Nana Effah-Apenteng, the Chief of Staff of the AU-appointed Panel of Eminent African Personalities chaired by the former UN Secretary General Kofi Annan, which has been working with the Kenyans since early 2008 when the violence was at its peak, says: “The post-election violence shocked Kenyans out of their complacency, so much so that, despite the numerous challenges facing the country, they have been able to renew their institutions and largely implemented far-reaching decisions agreed when the Grand Coalition Government came into power. They have learned their lessons and deserve credit for the way they have gone about rebuilding their country in peace and reconciliation. It is a remarkable thing they have done here so far, including crafting one of the most progressive national constitutions in the whole wide world.”

Ethnicity – strength or weakness?

This last is a particularly important clause as the post-election violence has been widely attributed to “ethnic tensions”. Kenya is home to some 42 different ethnic groups and has large populations of Asians and Europeans. While there have been some ethnic tensions, usually over land resources in the past, nothing like the events of 2007-08 have ever occurred.

“This has always been a multi-racial, multi-ethnic society,” says Samuel Mwale, principal administrative secretary in the Office of the President.  “We have not only rubbed along happily with each other over the years, we celebrate our unique ethnic and cultural differences.”

An Afrobarometer survey in 2003 supports Mwale’s assertion.  In it, 70% of the country’s population said they would choose to be Kenyan if faced with a choice between a national identity and their ethnic group; 28% refused to identify themselves as anything but Kenyan.

What then was the cause of the explosion of post-election violence? There are many theories. Some contend it was pent up frustration, going back 30 years, wherein many groups felt excluded from the centres of power and wealth; others trace it back to the divide and rule tactics of the British colonialists.

Prime Minister Raila Odinga, in an interview in this Report (page…) says it was violence created by elites using ethnicity to cover up their own failings. “Ethnicity is a disease of the elite. It is the elite who, in competition for the resources in the country, resort to ethnicity as a tool for discrimination against each other. And they benefit unfairly in the name of the tribe or community. They use it as a shield, especially when they have committed a crime and have to face the music. But when they are enjoying the loot, there is nothing like the tribe,” says the Prime Minister.

Gichira Kibaara, permanent secretary in the Ministry of Justice, National Cohesion and Constitutional Affairs supports this view. “What is interesting is that most of the serious ethnic conflicts in Kenya are political. You know they are political because they appear around election time,” he says. “Politicians take advantage to rabble-rouse, because it is easy to ride on ethnicity to get elected. You just tell them, ‘you are my tribesmen, you don’t need to check my qualities, whether I am a poor manager or not, all you need to remember is that I am from your tribe’.”Under the new constitution, such rabble rousing could land one before a court. “The age of impunity that thrived during the Moi regime, is now over,” says Duncan Okello, the Judiciary’s newly appointed chief of staff. “You break the law, you pay the price.”

In the meanwhile, there was some accounting to be done. Referring to the violence, Gichira Kibaara says: “Doing the right thing is not negotiable, it must be done. You are dealing with people’s lives that were lost in your own country, not in another country. You need to bring it to a justifiable conclusion, you must address the fact that people were raped and maimed, and houses were burnt down.”

In a bid to bring the perpetrators of the violence and those who goaded them on to justice, a commission was set up and its findings were presented to mediator Kofi Annan. He wanted a local tribunal set up. But when President Kibaki and Prime Minister Odinga presented the relevant bills twice to parliament, they were rejected by the House. The slogan used was “Don’t be vague, let’s go to The Hague”.

Mutula Kilonzo, the current Minister for Justice, National Cohesion and Constitutional Affairs, was distraught although at the time he was in another ministry.

“Parliament’s rejection of the two bills,” he says, “was clearly a vote of no confidence in our judiciary. I was very, very disappointed [because] the full cabinet had supported the idea of a local tribunal and yet when the first bill went to Parliament, some of the cabinet ministers who had earlier agreed to it, voted against it. Key supporters of the principals of the Grand Coalition Government opposed it. And in consequence, it failed! I am totally convinced that it was an indictment of the judicial system of the country…

“Later, when I was transferred to the justice ministry, I prepared a more advanced bill and proposal for again setting up a local judicial mechanism in which I answered and addressed expressly item by item all the challenges that Parliament had identified as the basis for its refusal to set up a local tribunal. My second bill and proposal did not even manage to reach Parliament; it was defeated in cabinet. Again I had to swallow my disappointment.”

Kilonzo says his disappointment was even greater because “I could see my colleagues in Parliament thinking that the Hague process would take another 20 years to start, charges would come after 20 years, going by the experience of the former Yugoslavia and Rwanda. But they have been proved wrong.”

The International Criminal Court (ICC) chief prosecutor, Luis Ocampo, used a special clause to call for six powerful Kenyans – Finance Minister Uhuru Kenyatta, Cabinet Secretary Francis Muthaura, former police chief Hussein Ali, suspended minister William Ruto,  MP Henry Kosgey, and broadcaster Joshua Sang, to present themselves at The Hague for pre-trial hearings.

This sitting was to determine whether or not there was sufficient evidence to bring the “Ocampo Six” (as the Kenyan media have dubbed them), to full ICC trial for crimes against humanity allegedly committed during the post-election violence.

The confirmation proceedings were broadcast live on Kenyan TV (from The Hague) and dominated local media headlines. While there was disappointment that the trials were not held locally as was originally intended, there was a clear feeling that the era of impunity that the powerful enjoyed during the Moi era (1978-2002) was now over.

The fact that someone like Uhuru Kenyatta, scion of the legendary father of the nation, Jomo Kenyatta, could be brought to trial, meant that henceforth, no one could escape the legal consequences of their actions. The decision of the ICC chamber will be announced within 60 days.

Whatever the merits or demerits of the ICC hearings, and there is considerable debate over this, it is clear that Kenya has done with sweeping ugly issues under the carpet. This nation is prepared to search its soul, no matter how painful the truth may be. You cannot but admire such resolve.

The Grand Coalition

The 2007/2008 election was one of the closest fought in the country’s history. The two main parties, Kibaki’s Party of National Unity (PNU) and Raila Odinga’s Orange Democratic Movement  (ODM) were neck and neck almost to the tape when allegations of fraud began to circulate.

This was the ostensible trigger for the violence. At this point, the country was on a knife-edge; it could have easily slipped down the slope of an all-out civil war as it has done so often in Africa.

But just as the doomsayers were predicting another African catastrophe, Kibaki and Odinga did something unique in the history of modern Africa – instead of pointing accusing fingers at each other, they agreed to bury the hatchet and formed the continent’s first grand coalition government. Kibaki retained his position as President while Odinga filled the newly created position of Prime Minister. The violence ebbed and then stopped.

“In the context of what had gone before, this was a noble and selfless act. Both leaders put the interests of the country ahead of their own,” says Duncan Okello.

With peace restored in the country, Kenyans were able to count the cost of their “moment of madness”, as Professor Chege describes it. “The people resolved, ‘never again’” reflects Chris Kirubi, one of the most powerful businessmen in Kenya. “It had been a very expensive lesson. Sometimes it is only when you are about to lose something that you realise its value.”

With both parties united, the government set about its floor and ceiling house cleaning. This time, with help from the AU’s Panel of Eminent Personalities and the international community as a whole, the consultative process was inclusive and when the new constitution emerged, it was cheered by tens of thousands because as Sam Mwale points out, “it not only reflected the wishes of the people, it was owned by them.”

Work on Vision 2030, an action plan to transform Kenya into a rapidly industrialising, middle-income country by 2030, resumed with added vigour.

“A crisis can either sink you or propel you to undreamed feats of achievement,” observes Kirubi.

Considering the current mood of the nation, there is no question in which direction the crisis of 2007/08 has projected the country towards. This nation will continue to astonish the world for all the right reasons into the foreseeable future – as long as the people stick together. And they want to stick together, as they eloquently declare in the preamble of their new constitution: “Proud of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation … committed to nurturing and protecting the wellbeing of the individual, the family, communities and the nation, [we] adopt, enact and give this Constitution to ourselves and to our future.”