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3Z3 KENYA 1-ILFMAN RiGHTS "if COMMISSION Human Rights As Politics

KENYA tE•SO LU; cN'rIE

I ACCESSON No

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Kenya 1uman RIghts Commission 2003 MISSION STATEMENT The Kenya Human Rights Commission (KHRC) is a non-governmental membership organization founded in 1992. It has an observer status with the African Comn -iission on Human and PeopIes Rights. KHRC is the 1998 winner of the MS International Award, bestowed in Denmark.

The mission of the Commission is to promote, protect and enhance the enjoyment of the human rights of Kenyans. It does this through monitoring, research and documentation of human rights violations. It organises activist events and undertakes public awareness carnpagns on human rights. KHRC is committed to mainstreaming gender in all its programmes and initiatives.

KHRC is committed to the realization of human rights ideals in Kenya by strengthening the human rights movement. KHRC supports sociaL political, economic, and cultural change aimed at enhancing respect for the rule of law, the development of a society that upholds democratic values, a society aware of its rights and comes to their defense whenever threatened or attacked.

STRATEGIC OBJECTIVES KHRC strategic objectives are to: • Reduce human rights violations in Kenya • Strengthen the human rights movement in Kenya • Hold state, institutions and individuals accountable for human rights vIolations • Raise awareness of human rights in Kenya • Place Kenya on a truly democratic trajectory

Kenya Human Rights Commission • KHRC Valley Arcade, Gitanga Road P0 Box 41079 00100 Nairobi, Kenya Acknowledgement Many individuals associated with the Kenya Human Rights Commission have contributed to the production of this compilation. The Commission is especially grateful to its staff members, directors and associates who took time from their regular schedules to commit to paper their opinions and analysis for the various issues covered by these articles.

Willy Mutunga and Elena Gekas, the latter being an intern at the Commission in 2001, did the groundwork towards this compilation. Patrick Mutahi, Willy Mutunga, Mugambi Kiai and Margot Albert contributed to the editing and proofreading of the drafts.

The staff of the Commission in different ways contributed in ensuring the successful completion of this project. For their efforts and dedication, the Commission is very grateful.

We would also like to thank our donors, without whose assistance the production of this publication would not have been possible.

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MI2 Contents

Introduction...... 1

1 . General Commentary on Kenyon Politics ...... 3 TheCaseforaMiddle Ground in OurPolitics ...... 4 Muinu Kiai Primitive Instinctof Tribe-Based Leadership ...... 6 Mama Kii Time to Ration Powerof GovernmentThat Blames Itonthe Rain ...... 10 Mugombi Kiai and Willy Mutunga Political Bankruptcy: A Way to Avoid the Winding up of Kenya...... 13 Muganibi Kini and Willy Mutunga There's Hope for Kenya yet...... 16 Mama Kiai The Futility of Governments Refusing to Hear...... 20 Muqombi Kial

A. Political Commentary on Mail KANU Politics ...... 23 Slung by Opposition Coins, Kenya Regime Returnsto Politics of Intimidation ...... 24 Makau wa Mutuo Presidential Transitions: The Time to Talk is Now ...... 27 Mama Kiai The Problem Is Not Miiumba' But Mitumb& Government ...... 33 Mugambi Kial and Willy Mutunga Testing President Mois Political Will and His Commitment to a Legacy of a United Kenya ...... 37 Mugambi Kini and Willy Mutunga Moi: What Would Surprise Kenyans on New Year's Day------40 Willy Mutunga Moi's Legacy Is His Road to Damascus...... 41 Mugumbi Kiai and Willy Mutunga Running a Bad Race: Sports Administration in Kenya is Oppressive ...... 44 Mugurnbi Kiai and Willy Mutunga WhatIsihis Co-operation? ...... 48 Mugambi Kiai Our Crisis of Political Leadership Continues ...... 51 Mugambi Kim and Willy Mutunga k1kW Corruption in Kenyan Politics ...... , .._. .,.••••••••s• ...... n. . ...nr.n...... 55 Youth Fund: Haram bee Spirit Has Lost Meaning ...... 56 Mama Kini IllegalBan On Seminars ...... 59 Willy Mutunga The Social-Political Dimension of Corruption in Kenya ...... 61 Mugarubi Kiai Corruption: The Unspoken Foreign Connection ...... 63 Mugombi Kini and Willy Mutunga

Commentary on Ethnic Divisions in Kenya/State Sponsored Violence ...... 67 Govt's Subtle Role in the Fighting...... 68 Mama Kioi Kenya's Succession Politics and the Threat of Renewed Violence ...... TI MutumoRuteere Lies are Tools for Repressive Regimes ...... /3 Mama Kioi First among Unequals: The Question of Representation in Kenya ...... /7 Mugarnbi Kiai and Willy Mutungo TheEthnic Dilemma in Kenya ...... ED Mugombi Kiai The State Has Declared War on Kenyons ...... SI Willy Mutunga

Opposition Politics/Alternative Leadership...... 85 Did We Witness the Birth of a New Political Movement on Saba Saba 2001 ? ...... 86 Mugombi Kioi and Willy Mijtunga

In Search Of Alternativeleodership in Kenya: The Case of Ugunlo ...... 89 Mugambi Kiul and Willy Mutunga Wanted: A New Vision for Kenya, a Kenya with a Vision ...... 93 Mugwnbi Kiai and Willy Mutunga MyName Is Mheshimiwa ...... 96 Mugumbi Kiai Let Us Not Give Moss Action a Bad Name ...... 100 Mugombi Kiui and Willy Mutunga Let Us Also Learn The Good Lessons From The lICA Movement Willy Mutunga and Mugambi Kini

The Options for Contesting Political Power: The NCA Elections Strategy...... Willy Mutungo ......

Y Is Electoral Boycott An idea Whose Time Has (orne . 108 Mugambi Kiai and Willy Mutunga The New Alternative Political Leadership and Fundamental Change in kenya ...... I 12 Willy Mutunga New Form of Trade Union Movement Emerges in Kenya ...... 115 Muambi Kiai and Willy Mutunga The Cailfora Notional Convention ...... ha Willy Mutunga

Election Monitoring 123 Some Thoughts on the Monitoring of the General Elections 1997...... 114 Willy Muturigo TheSpiritof Kamukunli ...... 130 Speech by Willy Mutunga during the launch of the hook, "Constitution making from the Middle: Transition roliticsin Kenya, 1992-1997' Konu Elecljonsjnu Rural 'ocution ...... 132 Willy Mutunga

Constitutional Reform •..,J,.. 135 In Response to President Moi's Statement on Constitutional Review ...... 136 Willy Mutungu Kenya's Regional Trade and Constitutional Reform ...... 138 Willy Mutunga Should the Litmus Test for the Merger Be Ufunga mono ll ...... 140 Willy Muwnga The Electoral Playing Field Must Be Level before the General Election ...... 142 Willy Mutunga is Majimbo Federalism? Constitutional Debate in a Tribal Shark•Tank ...... ,...... ,,...... 144 Peter Kogwonia and Willy Mutungo Does the Kenya Government Understand ils Role in Constitution Making? ...... 151 Mugambi Kiui and Willy Mutunga Prerequisites to a Democratic Con stitutianal Review Process ...... 154 Mugembi Kiai and Willy Mutungo When the Tribe Means the PoliticIan: A Response to Kiraitu Murungi ...... 157 MutumaRuteero Why Mcjimbo is notthe Answer to Our Crisis of Rights ...... 161 MutumaRuteere The People, the Constitution and the Media in Kenya ...... 164 Willy Mutunga

vi Is Electoral Boycott An Idea Whose Time Has (oe . 108 Mugombi Kiai and Willy Mutunga The New Alternative Politiol Leadership and Fundamental Change in Kenya ...... 112 Willy Mutunga NewForm of Trade Union Movement Emerges in Kenya ...... 115 Muganibi Kiai and Willy Mutunga The Colifora National Convention ...... 118 Willy Mutunga

Election Monitoring .....s 123 Some Thoughts on the Monitoring of the General Elections 1997...... 124 Willy Miitunga TheSpirit of Kamukunji ...... 130 Speech by Willy Mutunga during the launch of the book, 'Constitution making from the Middle: Transition Politics in Kenya, 1992-1 997w Kunu Eledionsino Rural Location ...... 132 Willy Mutungu

Constitutional Reform •••...... •....,.. 135 In Response to President Moi's Statement on Constitutional Review ...... 136 Willy Mutiungo Kenya's Regional Trade and Constitutional Reform ...... 138 Willy Mutunga Shouldthe Litmus lesifor the Merger Be Iifungamano II? ...... 140 Willy Mutungo The Electoral Playing field Must Be Level before the General Election ...... 142 Willy Mutunga Is Mujimbo Federalism? ConstItutional Debate in a Tribal Shark.Tank ...... 144 Peter Kogwona and Willy Mutungo Does the Kenya government Understand Its Role in Constitution Making?...... 151 Mugumbi Kiui and Willy Mutungu Prerequisites to a Democratic Constitutional Review Process ...... 154 Mugumbi Kial and Willy Mutunga When the Tribe Meansthe Politician: A Response to Kiraitu Murungi ...... 157 Mutuma Ruteere Why Majimbo is not the Answer to Our Crisis of Rights ...... 161 Mutumu Ruteere The People, the Constitution and the Media in Kenya...... 164 Willy Mutungo

Yl Inter-Parties Parliamentary Group (IPPG) is Coming ck' . 168 Mugambi Kicii What '97 Might Have In Store for Kenya ns ...... 172 Mama Kiai The Propaganda War in the Constitutional Review Process ...... 176 Muqambi Kici and Willy Mutunga

A Vindication of Wonliku's Claim to the Constitution ...... 180 Mugambi Kini and Willy Mutunga

Conipcirative Political Analysis ...... 1 83 Though Shalt Per5onaIly Serve the President with the Petition; (ommondmentsfor the Election Petitions ...... 184 Mugambi Kiai Counsel of a Neighbour: A Few Extracts from Justice Kanyeihomba's Talktothe LSK ...... 137 Mugambi Kiai A Tale of Continuing Struggle in Two Countries, Kenya and Zimbabwe Reflections on the Just Ended Referendum in Zimbabwe ...... 189 Willy Mutunga

ny5 Foreign Policy ...... 195 Kenya's foreign' Foreign Policy ...... 196 Willy Mutunga

2. Commentary on Economic and Social Problems in Kenya ...... m.... 199

Economic Issues Facing Kenya 201 Not Enough Can Be Said About the IMF and the World Bank ...... 202 Willy Mutunga and Mugambi Kiai EcoNews Africa's Multilateral Agreement on lnvestment(MAI) ...... ,...... ,...... 205 Willy Mutunga

Security Problems in Kenya ...... 209 Rethinking Utumishi Kwa Woto Some Recent Lessons ...... 210 Mugambi Klai Shooting to Kill is Shooting Justice ...... 213 I Mugambi Kiai and Willy Mutungo Guaranteeing Security Is Now Upon Kenyan s Themselvesl...... ------216 I Mugambi Kiai and Willy Mutungo Time to Curb Arbitrary Powers in Kenya Mugombi Kial and Willy Mutungo

vii Land Grabbing: The Un5poken F oreign C onnEtion .222 Mugambi Kiai and Willy Mutungo We MustStop the Growing In5ecurity ...... 224 Mugambi Kin] and Willy Mutunga

Government's Treatment of Civil Society ...... 221 Why the Civil Society is under Constant Attack ...... 229 Mugumbi Kioi and Willy Mutungu NGOs and Politics: Which are PoIitknI N6US? ...... 232 Mugambi Kici and Willy Mutunga

General Social Commentary: ...... 235 AnAlien View ...... 237 Mugambi Kiai Human Rights: The New Religion ...... 240 Mikewa Ogeda Human Rights 98: A Tale of Two Cities ...... 248 Mugiimbi Kioi and Willy Mutuiigu Funding of Politics in Civil Society in EustAfrica ...... 254 Willy Mutunga Representation on the EA Assembly is on Opportunity to Build a National Consensus ...... 260 Mugainbi Kiui The Human Rights Situation in Kenya ...... 263 Willy Mutungo

3. International Commentary on African Affairs ...... 270 A Separate Notion for Block African Sudan ...... 171 Makaii wo Mutu Zaire Doesn't DeserveThatAid ...... 274 Mukau we Muluo lnterantionl Networks Lubbie5 and Partnerships in the list Century: Some Pitfalls...... 276 An Acceptance Speech read by Dr. Willy Mutunga for the MS—Prie Award for to Sustainable and Democratic Development, Nykoebing Faister, Denmark ...... 216 AfricanRenaissance ...... 280

IQ MakauwoMuiva 52 (on Kenya Be Saved From Its 6overnmenI ...... 282 Mkau wa Mutua

Democracy's Bid Fades in Ethiopia ...... 284 Makau wd Mutua -

VIII South African Election is a Big First Step . 266 Makau we Mutuc and Margaret Burnlrnm UN Must Make Rwunda a Priority ...... 268 Mukau we Mutua Forgive, but don't Forget ...... 290 Mkou we Mutuo Redrawing the Map along Africun Lines ...... 292 Makau we Mutuo Blameto Share in Africa...... 295 Makau we Mutun

4. I nternationa I Cornmenta r'y on Kenya...... 297 Is Kenya Ripe for Blood shed Rwando-style ...... 298 Mama Kiai Kenya's Freedom Rating among the Lowest on Earth ...... 302 Maine Kiai VictimsSuing Victims ...... 305 Makau wa Melon -

S. Gender Equality ...... 307 Men's Role in Women's Freedom ...... 308 MnkauwciMutua ParliomentNeedsto be Gender Sensitive ...... 310 Nleri Kaheberi and Dr. Willy Mutunga The Equality Bill 2000: An Alternative Islamic Perspective ...... 312 A Draft Disussion Paper Commissioned by MIThURI and KIIRC by Alurriin Mozrui

6, U.S Foreig n/ Domestic Policy ...... 321 Powell and New US-Africa Policy ...... 322 Moknu wu Mutuci The Clinton Scandal: Lessons from an Open Zip ...... 325 Mugambi Kiai and Willy Mutunga

7 International Human Rights Discourse 329 Cuoternola'5PIight ...... 330 Mekai wa Mutuci Kurdish Lender Cannot Expect a Fair Trial in Turkey ...... 332 Mutuma Ruteere

Memo to the International Human Rights Movement on the Murder of Father John Kaiser on the Night of August 24, 2000...... 335

The Attacks on the Americans on September 11, 1001: Challenges to the International Human Rights Movements ...... 331 Willy Mutunga Universolism...... 343 Alomin Mazriji

x Introduction

The collection is a series of newspaper articles submitted for publication and some of the articles were published. The articles capture the entire spectrum of human rights concerns in Kenya for the last ten years. Like the reality they reflect, they do not neatly faJI within specific categories or areas of rights. Rather, they are representative of the broad spectrum of issues that Kenyans have been constantly grappling with over the past decade.

The ten years that the Kenya Human Rights Commission has been working on human rights in Kenya have coincided with the period of momentous political and social change in the country. In the last ten years, Kenya has moved from a single party authoritarian system to a nascent multi-party state. Although political repression continues, there has also been significant opening up of the political system. For example, political detention without trial is no longer in the laws. And albeit significant shackles remaining in place, there Is a semblance of a vibrant press that does not suffer from the overt and crude censorship of the single party days.

The early I 990s began with the clamour for a multiparty system of government. In 1 990, the simmering discontent at the repressiveness of the political system burst to the surface. Kenyans took to the streets In spite of the threats, detentions and violence from the government of President Daniel arap Moi. It is this courageous struggle by Kenyans that forced the Kenya National Afrfcan National Union (KANU) government to relinquish its monopolistic hold on politics and concede to the amendment of the constitution In December 1991 to allow for multipartylsm.

The widening of the political space following the legislation of multiparty politics was frustrated by the outbreak of politically motivated violence in the name of ethnic violence. The violence swept through the Rift Valley, Western Province and Nyanza provinces and targeting members of Luo, Luyia and Kikuyu who were seen as opposition sympathizers. By the time the violence abated In 1994. about I p500 people were dead and over 300,000 internally displaced. The violence frustrated the transition to multipartyism by compromising the integrity of the 1992 general elections.

Even with the return to multiparty politics and the relative opening up of the political system, the police continued to torture and kill suspectand disrupt political rallies I while prison conditions continued to be a source of constant worry to human rights.

With Kenya.technically a multiparty state, albeit one in which opposition politics I. were significantly circumscribed, a new front for the struggle was opened with the demand for comprehensive constitutional review. In 1997, the demand for4 constitutional reforms peaked with mass action and street action organized by t' civil society and opposition leaders. Scores of people were killed and hundredA I in spite of this violent repression of dissent, 1997 became a turning point for the state-civil society relations as well as the defining moment in the path to comprehensive constitutional reforms- The Moi government grudgingly conceded the need for reforms. However, it would be four years later before any concrete action emerged to this regard.

The yeeir 1997 was also significant, as it was the year of the second multipartygeneral elections in Kenya. The elections were yet again marred by political vioknce in August of 1997, violence broke out in the coastal town of Mombas.a. The violence, targeting non-Indigenous upcountry residents, quickly swept through the coastal region leaving about 100 people dead, hundreds of thousands displaced and property worth millions of shillings destroyed. The spectre of violence was to be repeated in the Rift Valley areas of Nakuru and Laikipia.

The peTiod between 1998 and 2000 saw the government return to a busiiiess-as usual attitude with similar instances of political repression as had been seen in the prevous years. Yet, civil society and Kenya's political opposition renewed their concerted effort to put together a comprehensive constitutional review effort that would not be eontroied by the political centre. Hence, the birth of the Uturtgamano Initiative on Constitutional review, which would subsequently merge with the parliamentary one formed for the same purpose, to create the Constituti9n of Kenya Review Commission, whLch is headed by Professor Yash Pal Ghai.

As Kenyans look forward to a new dawn under a new constitutional dispensation, it would be important for all to reflect from past struggles as well as lessons of our recent history. Hopefully, this publication will go some way towards generating robust dscourse on Kenya's past constitutional and political happenings with a view to deliberating and advising on the best road map for the future

2 II., 1. General. Commentary on Kenyon Politics The Case for a Middle Ground in Our Politics MAINA KIAI

OnJune 1, 1963, the BritIsh government formally granted Keriyans the right to self- governance as a first step towards independence. This step was also a middle step, a compromise before full independence- The British still retained substantial powers in the politics, economy and the administration of the country, even though the face of the government was now Kenyan. In effect, Madaraka was our version of transitional rule.

In South Africa, the government of National Unity that included all the parties that won seats in the country's first multi-racial elections In 1994 was also a compromise between full majority rule and the minority government of the past. It was a transitional step, a middle ground in the country's political development, and one that vAll soon be transcended.when Deputy President de k'lerk leads his party into the opposition at the end of June.

The middle ground usually arises when there is tension in society for various reasons, which may then Jead to the taking of extreme positions that are best resolved by compromise in which all sides wIn a little, and also lose a little. The alternative to compromise and the middle ground is normally the vanquIshing of the other side, and accumulation of power on the victorious side.

And while some of the more vivid examples of compromise and the middle ground arise at the birth of nations, there is always.room for compromise and middle ground no matter what stage of political development a nation has reached because of the constant tensions that are part of politics. For instance, it can be argued that the repeal of section 2A of the Constitution in 1991 was a compromise of sorts between those who wanted Kenya to remain a closed state with no room for disagreement with the ruling elite, and those who wanted fundamental change from the colonial- like systc.m that has carried on in Kenya since independence.

In the middle course, the key players were the donor countries that put a clamp on future aid and the ruling elite in both KANLI and the nascent opposition groups. In this scenario, the repeal of section 2a was a fIrst step towards full democracy, accountability and respect for fundamental rights.

Another good example of political compromise was the efforts of the middle ground group led by Prof. Wangari Maathai. The object of the group was to get the two titans in FORD - Jarainogi Oginga Odinga and Kenneth Matiba - to compromise and accept middle course rather than both contesting the presidential election and splitting the that was against president Mol. As we all know, the MGG was unsuccessful in ing a compromise. -

4 Currently, the most pressing and visible crisis Is the one in FORD-Kenya between Ki!ana Wamaiwa and Mr. Raila Odinga. The crisis has led to a one-upmanship that has seldom been seen in Kenya, in fact, was it not for the vIolence, and the government1s subtle role in accentuating the crIsis and violence1 the whole episode would have been comical. In this mess, there is little sign of a middle ground or that any one side is prepared to compromise even an inch of the stakes.

I i A Primitive Instinct of Tribe-Based Leadership MAINA KIAI

One of the things that distinguished the so-called Young Turks from the "older generation' of political leaders is the latter's strong credertials as tribal leaders. in the past, it appears, before one could aspire for national leadership, one had to have earned one's spurs as a tribal leader.

Thus, lomo Kenyatta was first a Kikuyu leader, Oginga Odinga a Luo leader, Dani[ arap MoL a Kalenpri leader, Masinde MuIfro fr a Luyia leader, Paul Ngei, a Kamba leader, and Ronald Ngala, a Giriama leader first. -

Tribal leadership was then used as a propeller towards national leadership, with the implicit message that the leaders could mobilize their communities to vote as dne.

Toni Mboya was one of the few exceptions to this general trend. He was first, and always, a national leader through the trade union system. His ratucal costituency was not the tribe. Even at the height of his influence, he refused to be drawn into the role of a tribal leader, and was thereby despised by the Luos for ft. At the same time, this preference made him a threat to the Kikuyu mafia that was determined to retain power in Kiambu. For his plans, he was killed.

J-M. Kariuki is another leader who took a national approach to politics, focusing much of his attention on the problems of squatters. He too was brutally assassinated, There is a good explanation (not reason) for the tribal chieftainship factor in pre- Independence Kenya. it is a fact that the colonial administration worked overtime to ensure that Kenya was fully divided into sniall ineffective tribes that could easily be manipulated. The colonial strategy was one of divide-and-rule.

With the formation of KANIJ in 1 9&l, a distinct effort arose to counter this divisive and destructive strategy. KANU's counter-strategy of nationalism and unity was meant to offset KADU activities, for KADU had taken up the colonial divide and rule tactic as its raison d'ettc. To this end, Toni Mboya was a KANU candidate in a Kikuyu zone (Nairobi), James Onamti, a Luyi.a, a candidate in Kikuyu-dominated Mob, John Keen in Kitale, while Wasonga Sfjeyo stood for Senator in Nakuru.

In Kisumu, An-ijr Jamal, an Asian, ran for Parliament while Achieng' Onko tried his hand in Nakuru town. All but Keen were victorious. Unfortunately, the natIonalist approach did not last long. Unable to handle the ideoliogicial struggle waged by Odinga and his people-first approach, President Kenyatta decided to use the tribal card to bolster himself. In this he was ably assisted by Mboya, Charles Njonjo and the ex- ADU çeople he had convinced to defect to KANU. Soon, the same divide-and-rule c of the colonial era returned as KANU was divided into tribal zones aimed at

6 reducing Odinga's influence, Odinga left KANU in a huff, and formed the Kenya People's Union. The colonial strategies then went full throttle. The KPU was harassed and treated as a Luo party simply because Odinga was Luo. The propaganda on this was intense although the party stood fçr land rights for all., welfare for freedom fighters, and social, economic and political euity. The fact that KPU was easily proscribed without much resistance proves the effectiveness of Kenyatta's strategy.

The tribal tradition has been taken to even greater heights by the current regime. One is first considered by one's ethnic affiliation before other factors come in. While trying to reach critics and detractors, the first approach is always made by a clan-mate or kinsman. For example, when rumours started that Nakuru Catholic Bishop Ndingi Mwana a'Nzeki might become the joint opposition candidate against President Moi, the person sent to clarify the situation was Minister Kalorizo Musyoka, a fellow Kamba. This is because of the assumption that it is easier to reach a person through his kinsman.

In political battles, the first shot is always fired from the home front. For insnce, the efforts to derail Mwai Kibaki as Vice-President were led by Wruru Kanja, who is also from Nyeri. The same applies to the late losephat Karanja who was done in by his home colleague, Kuria Kanyingh Similarly, the attempts to topple Prof. George Saitoti have been marshalled by John Keen and William Ole Ntimama who are both Maasai. like Saitoti is purported to be. This patently ethnic approach has led to significant disgust in Kenya as it has been accompanied by massive nepotism, favouritism in the public sector, corruption and repression. Only those who can play the tribal card are rewarded with top jobs and plots, no matter whether they deserve them or not. In the early 1990s, a group of young men and women jumped into the political arena with a ery different approach. They were the young Turks: professional, well organized, fearless and above the patronage and sycophancy that characterized the older generation.

Deliberately or not, the young Turks ciit an image that was above tribalism. They seemingly worked in tandem, not for tribal agendas or personal profit, but for democratic Ideals such as the repeal of Sectiort2 (A) the right to dissent, and the empowerment of the people. They joined forces to defend the victims of the system Like George Anyona, and worked out strategies to bring civil society lawyers and clergymen into the struggle. However, today the force of the young Turks has dwindled as they have become divided because of personal agendas. And in this situation they have not been above using the same old tactics, thereby perceiving tribal leadership as a propeller to national leadership.

Dr. Willy Mutunga says the problem with the young Turks, and with political leaders in general, is that they are afraid of tackling the ethnic issue head-on. "Unless we discuss and bring Into the open all the issues about ethnicity, tackling them without fear or favour, and with dignity, we will always have this notion of 'it's our turn t eat."

7 Playing the tribal card is the easiest and least principled way of achIeving prominence in Kenya. Dr. Mukhisa K!tuyi the MP for Kimilili, and himself a Young Turk, traces the rise of ethnic chauvinism among the young Turks to the 1992 elections "The elections represented the end of the progressive popular struggle based on ideals and principles such as anti-corruption, good governance and democratic reform at the altar of personal power poiftics," he says. 1-lowever, are there natIonal issues that are neglected in favour of the tribal agenda? Yes, says Dr. Kituyi. They include the basic needs of citizens, trade unionism, agriculture, the foreign domination of our economy, and even the massive power of the World Bank and IMF. According to Dr. Kituyi, even where the leaders articulate these national themes, they do not do it with as much force or concentration as they do while expressing tribal and power issues.

Today, the Kfkuyu people can arguably be "delivered" between Kenneth Matiba and Mwai Kibaki, and Simeon Nyachae can "deliver" the Kisil. These are older generation politicians who learnt the art at the feet of colonialists and during the Kenyatta regime. The tactics are to be expected as their visions and aspirations for Kenya may be outdated, and predicted on the politics of control.

Of the younger generation, Michael Wamalwa can "deliver" the Bukusu, while Paul Muite briefly flirted with the idea of Gema as a vehicle to prominence. Musalia Mudavadi and Kalonzo Musyoka are busy laying the foundation to "deliver" the Luyia and the Karnba respectively. So too is Kipkalya Kones working to become the next Kalenjin spokesman and "deliver" the Kalenin vote

But no one in the younger generation epitomizes the tribal chieftainship like Iaila Odinga. And have no doubts. Raila is at present the undisputed leader of the Luo. Everywhere one goes in Luo-land, from Siaya to South Nyanza, among the old and the young, among the educated and the illiterate, Raila is seen as the embodiment of the vehicle that will lead Luos finally - to national leadership. Raila's message while in LUO land is one of unity for power. And seemingly, even economic moves such as bidding for the molasses plant are aimed at consolidating his influence in Luoland as the first step towards national leadership.

But while Kaila accepts that he has significant influence in Luo-Jañd, he denIes ever going there with the aim of playing the ethnic card. "In 1992," he says, "I resisted efforts to get me to stand in Kisumu Town or Muhoroni on the basis that I wanted to cultivate a national identity. I reckoned that if Nairobi people were to reject me in Langata after my, consistent role in the struggle for democracy, then it meant my vision had no place in the country and I had better resign. Mark you, of the 102,000 registered voters in Langata, only about 24,000 are Luo, the majority being Kikuyus and Luyias."

Sadly, he is not quite convincing on this matter. Indeed, he is proud of his clout in ioland, pointing with satisfaction that his men won civic seats on PICK tickets.

yang' Nyong'o finds this love affair with ethnic pride cheap and unfairto the Time to Ration Power of Government That Blames It on the Rain MUGAMBI KIAI AND WILLY MUTUNGA

It must be torrid being God/Allah. By the latest indication, the Almighty is the reason why Kenya is a third-world country. You see, the official line is that the difference between a developed economy and an undeveloped one is essentially an act of God." What is ironic about this official line is that there are those who are very high up in government - notably - the Head of the Civil Service, Dr. Richard Leakey - who are atheist and do not believe in God/Allah.

This notwithstanding the argument from scrikaii is that it would only take the smallest of shakes of the Almighty's magical wand and voii& The lights would comq again. And there would be a re-emergence of tapped water, the potholes and craters dominating Kenya's roads would be mended, there wou'd be drugs in public hospitals, there would be an education system in the country and, yes, the red meat that Kenyans have been gorging themselves with would not be derived from beasts of burden

if only God/Allah could answer back. To start with, governnien .t would be reprimanded foi taking the good Lord's name in vain. And more principally, the Almighty would also remind government that God/Allah created (wo)rnen, who formed governments which should build dams, reservoirs, roads, hospitals and provide drugs, quality education and proper health and sanitation standards

The problem, hence, is not that government is not made of rainmakers. Rather, it is that government did not build adeqLlate dams and reservoirs and so on for Kenyans' needs. And it Is not the duty of donors to build or provide these necessities; this duty belongs squarely with government.

The biggest tragedy, however., is not that the long-suffering wananchi will now have to go about their businesses without seeing each other. It is that notwithstanding that government is the principal author of this disaster, it has not been held accountable for the mess it has created.

in a working democracy, the rationing of electrical power would have led to the immediate resignation of government. And should such a government (as occasionally ! happens) fail to do so, it is shown the door by its citizens. in Kenya, sadly, the inverse is what works. Government will not resign. Worse, government cannot be forced to resign. And the reason is simpler In Kenya, the country h people belong to government. This is Inverted democracy. iLe,o during power rationing, the country and people can suffer the outag'ës till I0 kingdom come but heaven forbid that those in government experience these! Look at those exempted from the rationing and you will see what I mean. The residences, offices and clubs of those in command of government do not, experience a rumour of rationing.

It is true that if you no wear the shoe, you will not know where it pinches. In Kenya, this rule applies across the board. For example, why would those in government care about the lack of drugs in public hospitals while they can afford the private medical care of the most exclusive doctors? Or about potholes on the roads when they can fly to their destInations or be chauffeured in four-wheel drive motor vehicles? Or about the collapsed public education system when their children can attend the best private schools locally and abroad?

No one could have envisaged that this would become Kenya when she attained independence in 1963. At that point, poverty, illiteracy and disease were identified as public enemy number one and a war against them declared. Close to thirty-seven years later, any objective ranking would place government as public enemy piumber one. Indeed, as one crestfallen Kenyan was to observe, maybe instead of rationIng power, it is the power of government that should be rationed. -

And this is the crux of the matter: Kenyans have no practical mechanisms whatsoever to do away with a government that has failed them. On paper, elections and the vote of no-confidence stand out as constitutional instruments to change government.

Yet in practice, this is not possible. The elections machinery is still largely controlled by government and with, for instance, the constituency boundaries hugely favouring the incumbent government, those in opposition do not even have a whisper of a chance to get into government. As for the vote of no confidence, do you forget that Kenyan parliamentarians have stomachs with which they vote? No wonder some of them are in amorphous co-operation with the ruling party.

Cleanly, this situation is untenable. Now that government is rationing power, Kenyans must get the power to ration government. This will be the only guarantee to ending the unacceptable power outages that beleaguer Kenya.

We will offer two suggestIons on how to do this. Firstly, mass action. Mass action is clearly an option that has government losing several winks whenever It Is engaged. We have previously discussed how the establishment and apologists of the status quo have found very persuasive means to deligitimise mass action. Yet,, if you believe in Mahatrna Gandhi and Martin Luther King Junior, you believe in mass action

In Kenya, it is impossible to rule Out mass action as a legitimate means of pressuring for change. Indeed, great constitutional developments in this country have invariably resulted from concerted exercises of mass action. The most recent example of this is the fact that government conceded to the IPPG reforms package only so as to defus4' the mass action potentIal that had built up in this country since the re-introductio multi-partyisrn in 1991. 11 Ironically, It took the example this week of pupils of James Gkhuru Primary School, Dandora to remind Kenyans of how much power resides in them, For a lon8 time, these pupils were exposed to the hazard of over speeding vehicles as they crossed the road to their school because there were no speed bumps there.

The recommendation of constructing speed bumps on that stretch of road had been made but fallen on deaf ears. Indeed, this apathy even darned the life of one pupil there. But now no more. Following this death, the pupils galvanised themselves into action and now Keriyans will not have to witness the buriai of another helpless child due to over speeding vehicles.

For those who characterise it as vEoLent please remember that religious processions or even the freedom-from-hunger-walk are examples of mass action. It is important not to demonize or condemn the use of vehicles simply because they cause accidents-

The other option on how Kenyans will regain their power to ration government is thorough open and comprehensive constitutional reforms. Currently, out oftthe two competing reforms processes in existence - that is, the Ufungamano Initiative and the Parliamentary one - quite clearly, it is only the Ufungamano Initiative that holds the promise of guaranteeing open and comprehensive constitutional reforms

The reason is simple: the Ufungamano Initiative is not controlled by the same executive that has consistently opposed democratic reforms in Kenya at every turn. Those who support the Parliamentary Initiative must remember one simple matter: let on its own, Kenya's parliament has a track record of dosing democratic space rather than opening it.

Mass action and open comprehensive constiuitional reforms do not have to be undertaken in mutual exclusivity. Ideally, they should be undertaken together to keep government on its toes. And the reason for this is that rationing will not end by itself.

While it is true that another generous shower of el-niOo magnitude would create enough water to resume normal water supply, what would happen following the consequence Ia nim? Will we remain forever remain prisoners to fickle climatic conditions and the vagaries of weather? God/Allah forbid. But does the Almighty have anything to do with it?

12 Political Bankruptcy: A Way to Avoid the Winding up of Kenya MUGAMBI KIAI AND WILLY MUTUNGA

The old is dyinq and the new cannot be born In this iriterregnum, there arises a great diversity of morbid symptoms. Antonio Gramsci

Kenya is in political menopause And there are more than enough symptoms to justify this diagnosis the coltapsingeconomy, the decayed infrastructure, political stagnation, poverty1 unemployment, political and mob violence, police brutality, deadly prison conditions ad nausertum.

And now we add famine to this list of symptoms. We concur with one Joan Njeri who, In an interview carried on a local daily, wondered why people are dying due to famine in Thrkana in a resourceful and productive nation rike Kenya. Following this catastrophe, news editor Eric Shfmoll had lamented that, "It is hard to believe this is happening in Kenya." Hardly, Eric. It is called menopause, dear Eric, menopause.

As a way out of this menopause, several strategies and initiatives have beensuggested or instigated. The most controversial one to have lately come out of the political sphere has been the caucusing around GEMA on the succession issue. Previously, we have heard and seen networking for Akamba unity across the political divide and co- operation between opposition political parties and the ruling one. There is also the idea from President Mol and his ministers and other ruling party operatives that he succeeds himself come 2002. Some have even been heard to say that Dr. Leakey should assume the presidency of this country.

The list is endless. What has been distressing about all these suggestions Is the very tenuous philosophical basis attached to them. Caucusing within GEMA or in the Akamba or other community is within the freedom of association of those concerned, but as a political strategy it is synonymous with political bankruptcy. Our experience has shown that rather than attract more sufurias into the home of Wanjiku it is one of the key reasons why she is starving today. It is thus an avenue for political invertebrates: the politically spineless who, due to political bankruptcy, intellectual surrender and unparalleled greed, are unable to bear the sweat, tears and toI of the long struggle for genuine change.

The same applies to the so-called co-operation between the ruling and opposition political partIes, which has finally betrayed itself as a plot to keep the Nilotic peopte together against a perceived Bantu threat. Co-operation does little to address causes or remedies of Kenya's political menopause. 13 Worse, all evidence points to the fact that the rule of both Kenyatta and Moi has not benefited the respective peasants and workers of the Gikuyu and KaIenin communities. Not has co-operation done so (isn't that hyacinth still in Lake Victoria?) The evidence in Kenya is that there are three conirnunhties: multiracial and multiethnic. These are the wa11ahis (the cIte), the wcthktheris (middle-class) and wa(ihoi (the wretched of the earth). In Nairobi, the waahihois constitute 70% of the population.

On the Leakey suggestion, the problem has been that rather than hinge on his considerable nanagerial skills, the focus has been on the fact that because he is a rnzwigu his white cousins will pour money into Kenya. How racist! How patronizing! It does not address the causes of Kenya's menopause, yet some have even argued that Leakey is a few (which is clearly untrue) to spice up the bait of resource generation. It reminds one of the case of a Ugartdan who formed a political party to agitate for the coming back of the British without considering that the British had never left after all.

And what is wrong with MOI succeeding himself? Apart from the fact that hisiregime - and that of Kenyatta before - has to take ownership of Kenya's politicaL social, economic and cultural spiraL it is also wrong because it promotes gerontocracy. It is rt That the. eWet'y have no ideas about the 'ay lorward, it is That there is always a need for the nation to take a breath of fresh air every so often to avoid stifling alternative leadership and competition.

Hence, when one sees the tired and retired Charles Njonjo being packaged as an icon for reform, the distress is that we are now entering the phase of Kamuzu anda's walking-stick politics: the rule of political dinosaurs.

And if Kenyans do not want to be consigned to the political rnuseuim there is an urgent riced to fcus on ati\e wais out \vh)ch wii be designed to adthess the causes of why Kenya is in a democratic rut.

At the macro-level, this will mean an interrogation of the international economic system or the new world order - as it is more popularly known. What is interesting here is that our ideas on the cons of the new world order are almost a carbon copy of those advanced by XANU ideologues such as Professor William Ochieng who made a very interesting analysis on globalization in the Suiday Nttan of November 14 1999.

• Hcwever, this is where the synergy ends because whereas our analysis has been rooted to the fact that the new world order (and even the old one) has been a great exploiter of the underdog the politically and economically weak, disadvantaged and rmirginalised - the ruling party thinkers have been out to convince Kenyans that they can mobdize wananchi against globalization and recolonization.

This way. the Moi-KANU regime does not have to account for its failures in all facets of our society. 'Why not blame the main enemy and oppressor, colonialism and mP' they seem to ask. Very clever, by half. History, Professor, wiH nor be that way. The postindependence regimes are part and parcel of this ion, L 14 Which is why at the micro or national leveL democratic leadership and methodologies of governance must be introduced. These will focus on how to solve crticaI national issues such as unemployment (especially among the youth) fr non-availability of drugs, the AIDS pandemic s the provision of basic needs such as food, clean drinking water and a clean and healthy environment, accessible education for all and how Kenyans will be free to enjoy life, liberty and the pursuit of happiness, it will also look at the crucial issue of why we need foreign aid and for how long we will have it, as well as how wananchi will survive under a ferocious, exploitative and cruel international economic system.

This kind of leadership can only be borne out of a constirutioral system when power is accessible to everybody but has an adequate sprinkling of checks and balances. And such a consUwUonal system must be borne Qf the people by the people and for the people. It must be bonie of a people-driven constitutional review process that incorporates their views and addresses their sensitivities without the manipi.ation of the vested interests that array Kenya's political terrain-

This way Kenyans will avoid situations where the President can go on an EM radio station and unbInkrigly state that, jD1on't you reali2e that to finish Moi is to finish Kenya?" For this sounds very familiar. Some centuries ago, a French autocrat cafled King Louis XIV stated (as boldly). 'L'etat, c'est ruoi." (I am the state and the state is me)

= .4 There's Hope for Kenya yet MAINA KIAI

This is the season of goodwill when Christians across the world take time to express their concern for others in the same way that Jesus Christ did,

It Is also time for reaffirming hope and aspirations for a world that is lust and fair. More than any other time, it is a season when God's will should be "done on earth as it is in heaven.

This season is also a season for reflection, a time in which we must reflect about the future of our country.

Many political observers, and many in the pro-democracy movement, are pore pessimistic about Kenya than they were a year ago. There seems to be little proress and far more squabbles than before. The Constitution has still not been changed and the Government seems as determined as ever to retain it in its present colonial form. Opposition parties have continued their fights and struggles using far more energy, ideas and firepower on each other than on KANU,

indeed, their strategies and battles have become so intense and brutal that one wishes they devoted just have half of that energy on an agenda for constitutional reform. Chief Justice Majid Cockar seems determined by being overly concerned with a Mornbasa case against KANU to follow orders from the Government. In this, he would be flouting the Constitution, and taking the struggle for the separation of power decades behind.

Attorney-General Amos wako seems to see his role of defender of the rule of law as one confined to public relations such as appointing a fundamentally flawed and tooth less Standing Committee on Human Rights.

Chief Magistrate Uniter Kidulah has suggested that there is no alternative to the Government as public Prosecutor, even though the Idea of private prosecutions was created as a check against failure by governments to prosecute those It should.

And while all this Is going on, reports surface that some "prominent" men who happen to be of klkuyu origin are meeting to plot how they, themselves not the community, mark you can become Influential and powerful again, as some of their friends were during the Kenyatta era. And they think that they can do this by working within KANU, of course, they shroud their selfish agenda with a tribal language saying they are Interested in the cause of the Kikuyu.

re Is also the never-ending corruption and land grabbing. All we hear are nice tatin,g that Government Is committed to ending corruption. Yet, people Who h6s 16 made rames in ripping off parastatals to the point of bankruptcy are rewarded with Cabinet posts, or to head Salary Review Committees.

Land grabbing continues unabated and the Minister for Local Covernment, whose kith and kin have been named as recipients of irregular alIocations quickly passes the buck to powerless and roothles civic authorities, which he effectively controls.

In the midst of it all, Kenya gets another international airport built despite massive public disapproval. And this at a time when Kenya's main highway between Mombasa- the gateway to Kenya and a prime tourist destination-and Nairobi can hardly be called a road anymore! Pathetic too is the road between Nairobi and Narok, which leads to the .4aasai Mara, a tourism haven.

Incidentally, the most prominent air services providing alternative transportation to these two areas (both of which have a significarn flow of human traffic) are Aft Kenya and EagLe Aviatiorn whIch are linked to tvlr. Nicholas Blwott and the Kenyatta amlIy respectively. it makes one wonder whether the had roads are a deliberate "business" consideration to increase local air travel!

And there Is also the secret purchase of a presidential Jet for over $50 million. And the Sh500 million was raised and handed over without conditions, terms, or contros to the President in the name of a National Youth Fund just as the country gears up for

And the police remain uncontrollable or so it seems, as they shoot "wanted criminals" on sight with only the only evidence of wrong doing coming from them1 and this is tendered after the "wanted" criminal is shot on sight. The police continue to beat and torture people to death with Impunity and arrogance. They even ignore court orders as happened in Murang'a in July when a magistrate's order to arrest a police constable and charge him with manslaughter was quietly ignpred and the policeman transferred instead. And the rate of HIV-Aids rises daily, without a sense that the Government and the people are ready for a trank and honest discussion. Unemployment, on the other hand, rises daily, even as the /ua kall sector Is constantly under siege from either KANU youth wingers or policemen who go about destroying kiosks.

And.,. the lIsts go on. Nevertheless, and in spite of that long list, I believe there is more hope for Kenya than there was a year ago for two very simple reasons.

The first Is that KANU members have finally reaUed they have the capacity to think or thenseIves and assert their own Interests Instead of beIng treated like little children who need the guidance and "wisdom" of the big man. KANU members are now demanding the right to choose their own leaders in the parry rather than having imposed upon them by an individual. A 17 The second reason for optimism is the dramatic growth of dvii society, defined as that part of society that is not part of government or involved in active party poiltics. From Christians to Muslims: from architects to trail-blazing lawyers: from Mwea residents who resisted police at a political rally to the share holders refusing to have certain directors rammed down their throats at the Kenya Airways from university students involved in civic education to air traffic controllers who have demanded respect; from coffee and tea farmers who refuse to pick their crops when there is unnecessary controls to milk farmers who not only forced out a Board that was more intent on serving itself than the farmers, but also learnt that they can successfully stand up to the President.

The opening up of KANU was bound to happen sooner or later, and it is a tribute to the existence of pluralism that this transformation has occurred now before the next multiparty elections. The fact that this "unrest" In KANU has occurred at a time when Opposition parties do not seem to be viable options, shows lust how bad things are in KANU.

On the other hand, it might just be that KANU has opened up because of the mess in the Opposition, which has resulted in far fewer options than before. But no matter the reasons for the opening up, this is a development that needs to be encouraged.

it was the tight controls within KANU that led to the massive corruptIon and misuse of power in Kenya. The tight controls led to the creation of demi-gods who perpetrated repression., insecurity and sycophancy.

Even if the culture of fear and dictatorship in KANU is re-introduced by bringing back expulsions as a political weapon- and I am not sure this will work, as it will only expose the divisIons in KANU, the political leadership must know that no other KANU reader will ever exercise the level of control after President Mci, He can only guarantee the protection of his tainted cohorts in the future through amicable negotiations, not forced solutions that create more enemies.

In fact, if expulsions are brought back to KANL1, the long- term losers will be those seeking a closed., tight and dictatorial party. Why? Because dissent will shift underground, seek new allies, get renewed organization and vigour and simply await the time when KANU will be without Moi- a short five years away.

The growth of civil society across the country is inspirational. Today, most churches are realizing that without real reform, their message is useless. Muslims, too, have realized that if they stay out of the constitutional debate now, they may lose out again.

Women are realizing their agenda and issues are the same irrespective of party ioylties, and that most parties only want women to sing and undulate for them. hm iodwar to Nakuru, form Nyeri to Kisumu: from Mombasa to Narok, the Catholic can churches are involving their priests, lay-people, catechists and bisiops

hg 18 in civic education. The only sure guarantor of rights and democracy is the people themselves, not political parties or politicians whose main aim is to grab as much power as possb1e.

Developing a strong civil society, empowering the people from the elite to the grassroots, means redudng the power availab'e to any political party, which means more rights, more democracy and more development, as Kenyans will not be forced to contrIbute to get-rich-quick schemes disguised as harambees

Kenyans will be able to force the Government to spend tax-money on health and not lnternatQnal airports. They will be able to ensure that schools are serviced, rather than spend money- and that of donors- on Golderiberg-type scandals. And they will be able to ensure that only those judges with an independent streak- those whose loyalty to Kenya is more than their loyalty to individualsserve as Chief Justice.

So as we celebrate this festive season, let our hearts rise and our voices r1ng Let our hopes and our aspicatons for Kenya find expression In a commitment to working for democracy and development in Kenya by assisting the growth of civIl society, supporting the opening of KANU, and by serving Kenya, and not iridividuaJs, in any poUtical party. -

19 4 The Futility of Governments Refusing to Hear MUGAMB! KIAI

The Museveni government is trying to win this election by bullying the opposition. ..The electoral playing field is definitely not level. Since the start of the campaign.. .the opposition has been threatened with violence, arrests and intimidation by the army and the police observed Birtaifer Nowrojee, Counsel for the Human Rights Watch Africa, recently.

Yet again, art East African government has come under stinging attack, from a credible human rights group, on its affront of the fundamental human rights of its citizens. And yet again the major prospect is that, despite its gravity, this indictment will not spawn any acts of censure or discipline against those responsible for the infringement of citizens rights.

Ultimately, it seems like the status quo will remain, the incumbents will succeed themselves and life will proceed as normal. No redress whatsoever of past wrongs will be seen to occur and if there is any mention of these acts of malfeasance in the future, these will be confined to lip service. And of course, government will maintain that in its sphere of influence, hakuna matata (there is no problem), within which rubric further abuse will occur.

This apparent cycle of abuse-indictment-denial-abuse represents a key frustration of human rights watchers in the East African region where there always seems to be motion but no real movement towards the qualitative improvement of the respect of human rights in the region.

Indeed, barely a week prior to Ms. Nowrojee's statement, Amnesty International was urging the Tanzania government to establish an independent inquiry into the January vIolence in Zanzibar. Given the hostile initial official reaction to this plea, not much will be done in its fulfilment. One notes that the Tanzania government has alternatively opted to go on an international public relations tour.

This is reminiscent of the Keriyan experience in the late I 980s and early 1990s when the government countered Amnesty International's accusation of widespread and massive violations of human rights with an astutely coordinated public relations onslaught headed by the late John Ouko, then Minister for Foreign Affairs.

Ouko made an articulate and spirited defence of Kenya's dismal human rights record on several western capitals. ironically, he would later lose his life in mysjerious circumstances, victim of an indefensible violation of his right to life, whose death is resolved to this day. hi 20 Qkos unfortunate demise provides a stark lesson to those in government who turn ä blind eye to human rights abuses in their urisdlctions: they are likely to be consumed by the same system that they so assiduously defend.

In the end and despite its very strong resistance, the Kenyan government had to reluctantly accede to accusations of violations of human rights and open up democratic space in the country. It had engaged in a painful, futile and expensive exercise of cat and mouse, costing lives, money and credibility.

And here lies another inva'uable lesson. just as General Augostino Pinochet is learning at his great cost, the paradigm of human rights as a watchdog does have teeth, which eventually bite in defence of the citizen.

Today, a growing number of incidents indicate an escalation of human rights abuses in Kenya, pointing to the fact that the government, its supporters and servants seem not to have learnt these simple but vital lessons. And as the recent reports of Human Rights Watch and Amnesty International on Uganda and Tanzania respectivelyshow the other two regional governments are seriously catching up on the act Of their Kenyan counterpart.

Indeed, our common history is littered with instances of reports of human rights abuses, which although at first denied by the state, rater came to be vindicated. A good example in Kenya is on prisons and prison conditions. it has always been an open secret that prison conditions in Kenya are appalling.

In the colonial daysfr this was due to the fact that the philosophy behind prisons was based on retributive justice and deterrence. Under the doctrine of retribution, which was still an ascendant penal philosophy in Europe at the time, the colonial state stiJl subscribed to the mindset of "an eye for an eye and a tooth for a tooth."

With regard to deterrence, the state wanted to use the austere prison conditions to instil deep seeded fear in all those it considered to be criminally minded or subversive of it. Even then, the prison authorities either denied or rationalized the cruel and Inhumane treatment of prisoners.

Little changed at independence, even with the passage of two post-colonial governments. Indeed, it has been a key feature in both regimes that the intolerable prison conditions are assiduously denied by the state in general and the prison services in particular- In the alternative, these governments have rationalised the punishing = prison regimes by saying that prisons are not hotels.

Although there is a measure of truth in that, one cannot help feel aggrieved when they see former inmates emerging with all kinds of crushing illnesses, and some even with crutches due to the debilitating prison conditions.

In addition, one can hardly forget the images of sick prisoners, who have been ravag by the typhoid epidemic in Embu, chained to their hospital beds. It is not by actL-

21 then that Kenya's prisons are called death chambers and reputed to be the worst in Africa.

The denial or rationalization of these unacceptabk conditions has continued through the years and most painfully under the tenure of the immediate former Commissioner of Prisons, Mr. Edward Lopokoyit. The jury is still out on how his Successor, Mr, Abraham Kamakit will perform., especially with his promise to. open up prisons to public scrutiny.

The Uganda prison system is more open. Under the leadership of the CommissIoner Mr. Etima, they have been able to be more accountable to the public, from whose taxes it draws most of its resources. Moreover, it has, in this way, been able to enlist the support of private foundations and organizations in providing the necessary infrastructure in prisons.

And although there are still incidences of prisoners rights abuses as evidenced by the use of prisoners to exhume, without protective c'othing, the corpses of those who died in the Kanungu disaster, there is a lot more guodwil1, trust and support for the Uganda prison system than its Kenyan counterpart This is siEnply because the Ligandan authorities in this instance have accepted that there is a problem.

And so this begets the question as to why our governments continue to refuse to listen to wise but critical counsel. Some would suggest embarrassment, but Jet us not forget vanity, in the words of Norman Vincent Peele, "The trouble with most of us is that we would rather be ruined by praise than saved by criticism."

And hence, if we were to identify a formidable stumbLng block to the respect of human rights and establishment of democratic governance in this region, it would be the vanity of power and the power of vanity. This is the devil that must be slain in the endeavour to create a more lust and equitable East Africa.

22 A. Political Commentary on Moi/KANU Politi"cs Stung by Opposition Gains, Kenya Regime Returns to Politics of Intimidation MAKAU WA MUTUA

Within weeks of being declared narrow victors in the country's first open election in 26 years President Daniel arap Mol and his Kenya African NatIonal Union (KANU) have unleashed a campaign of terror reminiscent of an authoritarian one-party state. Renewed government repression has shattered the hopes of Kenyans and some dip]mats in Nairobi that the election, which was neither free nor, fair, could have been the spring board for a democratic society.

Recent government-sponsored violence has brought this once- peaceful East African nation to the brink of civil war. Last week, members of the Kenyan secrt police attempted to abduct PuI Muite, an elected leader of FORD-Kenya, the key opposition party, from the basement of his office. Only the intervention of a crowd of supporters aborted the kidnapping. Mr. Muite, the de facto leader of the opposition, publicly condemned the continuing government slaughter of those who did not vote for KANU in Northeastern, Eastern, and Rift Valley Province.

Sadly, President Moi's actions come as no surprise. A despot who has ruled with an Iron hand for 14 years, Moi was a reluctant convert to competitive politics. He legalized opposition political parties only after donors had suspended aid pending economic and political reforms. He took every conceivable step to hobble the opposition and steal the election. He set the stage by orchestrating ethnic clashes, refusing to register eligible voters in opposition strongholds, and denying the opposition access to the media and permits for rallies.

On Election Day, with internatIonal and domestic observers reportIng widespread irregularities and rigging, Moi edged out the three main oppositIon challengers in the presidential sweepstakes. The opposition fared much better in the parliamentary poll: it won in all districts where government agents were prevented from rigging the election. In the 1988-seat National Assembly, the combined opposition captured at least SB seats, denying KANU the two-thirds majority required for constitutional amendments. The opposition immediately formed a united front, the Opposition Alliance, rejected the electoral results, and called for another election.

Regrettably, division within the opposition made it easier for the government to steal the election. The Forum for the Restoration of Democracy (FORD), Kenya's original pro-democracy movement, was split by ethnic divisions into two conipetingparties. = Oginga,a former chair of the Law Society of Kenya, led the main one, FORD- It remained the core of the movement. Kenneth Matiba, a former Cabinet r under Mcii, led the other wing, FORD-Asili. The Kikuyu, Kenyas largest ethnic Ii 24 group, mainly suppoi-ted it. The third major opposition party was the Democratic Party, also supported by the Klkuyu, and led by formey vice president Mwai Kibald.

While pressing for a fresh voice, the opposition parties should take their seats in the Parliament and work for a point legislative agenda. Under the leadership of FORD- Kenya, they must use their strength in parIlamnt to force economic and political reforms. They must press le.gisiative and constitutional changes to democrUze the presidency and other public institutions. They must now expose and punish oficiI corruption, human rights abuses, and the excesses of the executive. At a minimum, the opposition must demand the repeal of legislation that cnrninalizes basic freedoms and pre\!ets democracy, such as the detention and sedition laws, the Public Order Act, the Societies Act, the NGO Coordination Act, the Chief's Authority Act, and the Local Authorities Act, which Nairobi could use to abolish opposition-run local governments.

Even with these efforts, there is no chance that Moi will be a democrat. However,%the opposition has an excellent opportunity to tutor him. With nearly half the seats in parliament, the opposition can make it almost impossible for him to rule. He cannot pass constitutional amendments without its consent. Clever use of parliamentary procedures can slow or block the passage of government-sponsored legislation. Even a no-conftdeice vote in the presidency is not a wild speculation. In addition, Moi's victory Is hollow because the Kikuyu and the Luo communities, Kenya's two largest ethnic groups, overwhelmingly rejected him. The opposition is also fortified by its handsome win in civic &ections in several provinces, breaking KANU'S monopoly on local politics.

Soon after the election there were reports that Mol was thinking of forming a coalition government with FORD-i

Donor countries should not resunje aid to Kenya based on a fraudulent election JT West must not reward Moi for heightened government repression and disresp

25 democracy and human rights. The Ctftitori adrnnistratori shourd thsst that Moi agree to work with the opposttior in the framework of the nattonaE conference to carry out economic, IegsIative, and political reforms before additional aid is forthcoming. Unless these conditions are metfr and the internaionaJ community continues to withhJd aid, Mol will have used the stolen election to crush the opposition and drive the country to civil war. He must not be allowed to continue in power. If that happens, we will have allowed him to lay foundation for a future Somalia or Liberia.

hL 26 Presidential Transitions: The Time to Talk is Now MA1NA KIA1

One of the highlights of Cherengani hIP Kipruto arap Kuwas recent open letter to President Moi was the succession issue. With this, Mr. Kirwa became one of the few people in KANU who have dared tackle this issue.

The last time anyone else tried, he lost his position as chairman of a KANU branch. His name is Jackson Kibor.

But even as the KANU hawks and vultures descended on Mr. Kinva, few Ofç them touched on the sucesston issue. Vice-President George S.aitoti's response that successlOfl was a non- issue in KANU, even as it is burning up the party, is typical of the official attitude.

Ms Njeri Kabeberi of the unregistered Safina parry does not find this attitude surprising aiall.

Speaking from a personal viewpOint, she says the reluctance to discuss the succession issue in KANU is due to the tear that it will be seen as a direct challenge to President Moi, who is also the head of KAU.

Given the immense powers of the president in Kenya, such talk might be construed as wishinr for Succession, and therefore a sign of disloyalty to the President.

This is why even discussing the possibiiity of a vacancy in thevice-presidency openly is not done within KANU circles.

Minister Kipkalya Kones, however, did broach the Issue of succession after Mr. Kirwa raised it.

Unfortunately, his approach was to try and bury his head in the sand. He thmks cep.aling th cnta (t(tatton of thpresidevitiat tcm wiI quel the succession debate. He is wrong.

While the clause limiting presidential terms to two has undoubtedly led to increased bo'dness and openness in dealing with the issue cf succession repealing the clause will not irake the issue go away. it will only drive it underground to rumour mills or lead to unsavoury conspiracies like the Ngoroko plot, which festered during the dying days of the Kenyatta regime.

There is a mote issue within ie sccesion debate beyond teri few in Kenya dare publicly speak about.

27 This is true within the media, in politics and in general. Yet that topic cannot be avoided as long as human beings remain mortaL

So let it be said loud'y and iearly: What would happen to Kenya if President Moi were to die sudden'y today?

A Jot of the self-censorship on this Issue can be traced to former Attorney-General Charles NjonJo who, in a ridiculous spin on the Jaw, decreed that it was treasonable to discuss President Kenyatta's succession. But read what Section 40 of the Penal Code says about treason:

Any person who .... cornpasses, imagines, invents, devises or intends the death, maiming, or wounding, or imprisonment or restraint, of the President, or the deposing by unlawful means of the President... .or the overthrow by unlawful means of the Government-.is guilty of the offence of treason."

Nowhere does it sy that discussing succession is treasonable. Nor does it man that Kinyans are pohthtted from talking alxut the inevitability of the death of the President. The treason law only prohibits the wilful pkrnning of the President's death.

Law Professor Kivutha Kibwana puts it thus:

"Njonjo's interpretation was a shrewd political move to stop pecpe discussing succession as this lack of discussion would enable the incumbent Vice-President (Daniel arap Moi) to succeed Kenyatta without challenge His plan worked."

And, Prof Kibwana continues, how can discussing succession be treaonablc when the Constitution itself- the supreme law of the land- discusses it in Section 6?

The section reads: 11 the office of the President becomes vacant by reason of the decith or resignation of the President....,"

Dr WIlly Murunga, a former chairman of the Law Society of Xenya, agrees with Prof Kibwana and is firm that Illness or death of the President is a national issue to be discussed openly".

But back to the issue. The sadist thing when thinking about a sudden and unplanned tvloi succession is the realization that the country has been so well and truly divided into tribes, fractIons, religions and classes, that President Mol's continued control of the level of powers seems to be one of the few guarantees of stability in the country.

And just as in the twilight years of the Kenyatta regime, though to a much lesser extent, the t.houht of Kenya without Moi seems to be one that portends chaos and confusion.

The experiences with the Kenyatta and Moi regimes have raised the stakes for the residency so high that few politicians want to be out of the ]oop the next time round is can mean serious poverty, loneliness, and anonymity. It could also mean f0y the sins of the past. 2$ On the other hand, being part of the favoured c)ique means wealth, status and some power even if one has to be a sycophant to acquire and keep that power.

While the immediate post- Mol era would likely be a turbulent one, it could just as easily be a stable one if handled constructively and patriotically, and with some foresight.

When Kenyatta died in 1978, the prevailing mood was one of apprehension and uncertainty. An immediate post-Moi era wuId, one the contrary, be one in which there would be far more confidence and openness. Kenyatta's death caught Kenyans without the experience of dealing with presidential transition. That experience now exists.

The constitutional position on the succession of the President is that the \/icePresf dent takes over in an acting capacity for up to 90 days before presidential elections are held.

In the multiparty era, this means that all registered parties have a right to field candidates in these elections. The critical issue then beconies What happens in those 90 days?

In Dr Mutunga's view, the biggest impact of a sudden Mol exit would be felt in KANU. The party's differences and internal contradictions are now kept in check by the power (and person) of the presidency. So rather than resolve discontent and dissent, the only ideas allowed are those of the President and his closest allies.

IKANLr, says Dr Mutwiga, "is Moi and there are no structures that are independent and beyond the person of the President. The consequence of KANU without Moi is disarray'.

Dr Mutunga posits that Vice-President George Saitoti would almost certainly succeed Moi as acting President of Kenya. But unlike in I 978 when Moi was unchallenged due to the machinations of Mr. Nlonjo and due to the uncertainty and national experience of the time, Saitoti would probably encounter serious interna' chaengs as acting President.

In addition, the existence of Opposition politics has created some political space for dissent and independence within KANLI

Prof Kibwana has a different view. He thinks the existence of Opposition parties would be the reason why KANU woud close ranks and discourage competition, rather than allow discussion.

In these circumstances, visits to pledge loyalty and ask for pay-offs for supporting Saitoti would be very common. Saitoti on his part woutd endeavour toaccomrriodate his most ardent and powerful opponents within KANU with promises and horse - trading to ensure he is not undermined.

29 On the other hand, being part of the favoured clique means wealth, status and some .power even if one has to be a sycophant to acquire and keep that power.

While the immediate post.- Mol era would likely be a turbulent one, it could just as easily be a stable one if handled constructively and patriotically, and with some foresight.

When Kenyatta died in 1978, the prevailing mood was one of apprehension and uncertainty. An immediate post-Mol era would, one the contrary fr be one In which there would be far more confidence and openness. Kenyatta 's death caught K'enyans without the experience of dealing with presidential transition. That experience now exists.

The constitutional position on the succession of the President is that the \'icePresident takes over in an acting capacity for up to 90 days before presidential elections are held.

In the multIparty era, this means that all registered parties have a right to lield candidates in these elections. The critical issue then becomes: What happens in those 90 days?

In Dr Mutunga's view, the biggest impact of a sudden Moi exit would be felt in KANU The party's differences and internal contradictions are now kept in check by the power (and person) of the presidency. So rather than resolve discontent and dissent, the only ideas allowed are those of the President and his closest allies.

HKANU, says Dr Mutunga, Is Mol and there are no structures that are independent and beyond the person of the President. The consequcnce of KANLI without Moi is disarray".

Dr Mutunga posits that Vice-President George Saitoti would almost certainly succeed Moi as acting President of Kenya. But unlike in 1978 when Mgi was unchallenged due to the machinations of Mr. Nonjo and due to the uncertainty and national experience of the time. Saitoti would probably encounter serious internal challenges as acting President. in addition, the existence of Opposition politics has created some political space for dissent and independence within KANU

Prof Kibwana has a different view. He thinks the existence of Opposition parties would be the reason why KANU would close ranks and discourage competition, rather than allow discussion.

In these circumstances fr visits to pledge loyalty and ask for pay-offs for supporting Saitoti would be very common. Saitoti on his part would endeavour to accommodate his most ardent and powerful opponents within KANU with promises and horse-- trading to ensure he is not undermined.

29 A Would the forces in KANU opposed to Saitoti for whatever reason do what Mois opponents did in 1978 and succumb? Or has the reality of the immense powers of the presidency, and the experience of the use of those powers, sunk in to cause sufficient apprehension to spark competition in KANU?

And what about the ethnic issue that so dominates, nay, sustains KANU as a party? Would these competing ethnic "interests" be satisfied to play second, third, fourth fiddle again?

At present, the most powerful ethnic interest in KANU is Kalenjin, symbolized by President Moi as arbiter, and by Nicholas Biwott and Kipka]ya Kones as prime competitors.

But because of ethnic considerations, it is unlikely that the Kalenn community can occupy the presidency immediately after Moi, and the mayor issue for these "interests" would be the ability to play a key role in the succeeding regime.

Note, however, that the Kiambu mafia around Kenyatta thought they could keep the presidency to themselves but were thwarted by the Njonjo-led fraction that included Mwai Kibaki and the Nyeri-Murang'a-Nyandarua-Laikipia Kikuyu axis, which sought to preserve its influence within the government through Moi. For a while they were successful, before being dispensed with.

Then there is the Luyia factor. The community has been clamouring for its "appropriate" status for a long time. Would they agree to play second or third fiddle again not knowing when they would be dispensed with? Would they convince their favourite son, Musalia Mudavadi, that this is the right time to make a stab at the seat himself?

And there is the Kamba clique, which happens to be the second largest in KANU after the Kalenjin What would Kalonzo Musyoka, who has been working hard to position himself as the rogical representative of Kamba interest, do?

But by far the most significant factor in KANU in a post-Moi era is the One represented by Cabinet Minister Slmeon Nyachae. It is significant because he is perhaps the only minister who has substantial power-base in KANU that is not dependent on President Mol's goodwHL And also because he is one of the few people who have become close to power, fallen from power, risen again without publicly humiliating himself, and retained some modicum of independence in the process.

12 Now, would Nyachae work with Saitoti or would he want to he the KANU candidate himself?

While all this wheelingand dealing goes on in KANU with substantial re-alignment of forces, the opposition parties would also be going through their own song anddancc.

, at present, all the major oppositidn parties seem incapable of providing Lfdential candidates without much fuss as they did in 1992. Only PICK, RENDA, a National Congress and the Social Congress could present candidates quickly. But that is only because these parties do not really exist outside their respective 9eaders'

FORD Kenya has just gone through "eEections' that have literally heralded the end of the party as we know it, rather than resolve the issues that afflict it. Were presidential elections to be held within the next 90 days, the level of discord in the fractIons would reach unbearable heights.

And in FORD Asili, would the Kenneth Matiba faction accept the possibility that their recent elections may have been in contravention of a court order?

And where would Martin ShIkuku be in the new order within the party?

The Democratic Party is not without its problems, and Mwai Kibaki would be hard pressed to do a repeat of 1992, when lie went to the General Election without ever convening a delegate's congress of having party elections. There would be a serious commotion, probably led by Ngengi N4uigai, for a re-ordering of the party line up.

And what about Safina and the other unregistered parties? Would they opt out df the presidential elections or attempt to join the fray? And if they decided to join the fray, would they do so by taking over a small party like the Kimani wa Nyoike group did with the Kenya National Congress in 1992?

With the rise ofpersonal interests above all else in Kenya's politics; with the reminder of the pain that a President can cuse; and with memories of the quick and multiple riches that the presidency can bring, thc battle for power in an immediate post-Nloi era would be bruising.

The critical stabilizing players in this drama are the military and the Attorney-General. The military is important in order to ensure no subversive and antI-people forces attempt anything unconstitutional, whether they are in power or not. And this is particularly crucial since the perpetrators of the 1 991- 1 994 tribal clashes have neither been disarmed nor prosecuted, and they could be re-fashioned into a force similar to the Ngorokos of 1978.

The A-C's role as an unbiased arbiter is also vital. The ambitions and interests of all those politicians in the various parties are unlikely to find fulfilment within those parties. There would be frustrations, accusations, and re-alignments. There would also be defections to and from KANU and between the Opposition parties.

For instance, there is a strong possibility that a number of Kikuyu '!eaders" would defeat to KANU if Saitoti were to be the KANU candidate. Many of the "leaders" are those who have noregard for principle and their major beef with the present regime is that they have been excluded from it.

Similarly, a significant portion of Kisii "leaders" in the Opposition wouldrobably defect to KANU if Nyachae were to he a KANU candidate.

31 A But others would find it difficult to defect for various reasons, rncluding the fact that they would not want to play secondary role. And for these people, the only option would be to form new parties. This is particularly true for the factions within the Opposition who are engaged in no-holds-barred contests for leadership.

Dr Mutunga also believes that with the chaotic state of all the established parties, this would be an opportune time for hke-minded people of principle from all parties and civil society - such as the churches, professionals, trade unions and non-governmental organizations - to come together in their own differert party.

fthse interests and ambitions are not channelled in a legal and constitutional manner, there Is a strong iik&thood of chaos. And this is where the AG comes in.

The easy and reasonable way out is to register any and all parties that would be formed - even for personal political reasons - during this transitional time, and let Xenyans decide who they want as their presidential from as many options as?ossible.

Would Amos Wakc be up to the task? That is the sixty-mnillion-doliar question. Were he to display the same lack of spine, bias and repressive tendencies that have characterized his tenure remember the amendment to the election law in 1992, the Lack of prosecution of the Goidertherg scandal, the harassment through the courts of independent iournarists, the Political Parties Bill and the Media Bills for example - then this country would be in trouble.

I I

92 But others wou'd find it dlfficu]x to defect for various reasons, including the fact that they would not went to play secondary role. And for these people, the only option would be to form new parties. This is particularly true for the factions within the Opposition who are engaged in no-hods-barred contests [Or Leadership.

Dr rvlutunga also believes that with the chaotic state of all the established parties, this would be an opportune time for like-minded people of principle from all parties and civil society - such as the churches, professionals, trade unions and non-governmental organizations - to come together in their own different party.

if these interests and ambitions are not channelled in a legal and constitutional manner, there is a strong likelihood of chaos. And this is where the A-C comes in.

The easy and reasonable way out is to register any and all parties that would be formed even for personal political reasons - during this transitional time, and let Ienyans decide who they want as their presidential from as many options as possible.

Would Amos Wako be up to the task? That is the sixty-million-dollar questin. Were he to display the same lack of spine, bias and repressive tendencies that have characterized his tenure - remember the "amendment" to the election law in 1 992. the lack of prosecution of the Goldenberg scandal, the harassment through the courts of independent lournalists, the Political Parties Bill and the Media Bills for example - then this country would be in trouble.

I I

iLhk, 32 The Problem Is Not 'Mitumba' But 'Mitumbci' Government MUGAMB! KIAI AND WILLY MLJTUNGA

Going by the sharp reactions and criticisms that it is getting, the campaign by the Krtya Associatton of Manufacturers (KAM) on Buy Kenya to Build Kenya" seems to have come to a croppet One does not need to hazard a guess why this is the case, for aft those aggrieved continually point out that the mwrnanchPs preference for rntumb (second-hand products), rather than being genetic or instinctive is all about finances - or the lack of them.

So from what may have been a very noble venture, KAM seenis to have come tan impasse. This is because it would not be very wise todernand the banning or removal of mitumba from the market since it is all that the common mwatwichi cart afford. Yet. KAM still needs to promote and protect local industry, as its primary mandate. Miturnba or no mitwttha2 which way KAM?

One of the outstanding features in this whole set-up has, been that whereas KAM - and especially its chair Mr. Chris Kirribi - has been very articulate in challenging the government to create a level economic playing field, it has failed, refused or neglected to address the tact that to create a level economic playing field is a political (not managerial) question whose answers have political foundations. For it has everythIng to do with the establishment of the requisite political will and enabling environment for any changes to occur and be properly facilitated and managed.

Phrased differently. KAM is looking at the stem and branches of the problem and not the root. it is treating the symptoms and not the cause of the disease. And the cause of the problem is clear: Kenya is saddled with a mitumba government.

This is the kind of government tht asks but never answers. In the case of KAM the asking has clearly gone on for too long. The Jack of a satisfactory answer means that, to proceed, KAM needs to apply the necessary pressure to cause some movement. Right now, all we see is motion but no movement. Very senior public officers, including Vice-President George Saltoti, have voiced their concerns about the way foreign Industry is decimating local one. But what tangible effort is the government making to enable both the inwananch! and local industry to survive?

Given recent reports, it is doing a lot in the other direction. Has it not been reported lately that it lost KSh. 580.4 billion in 1 994-95? So much for national survival under this mitamba government. For too long. Kenyans (like K'AM) are ready to extend their goodwill to a lackadaisical government which has interpreted its duties to mean th right to loot, lie and lounge smugly thereafter.

33 The Problem Is Not 'Mitumba' But 'Mitumba' Government MUGAMBI KIAI AND WillY MUTUNGA

Going by the sharp reactions and criticisms that it is getting, the campaign by the Kenya Association of Manufacturers (KAM) on "Buy Kenya to Build Kenya" seems to have come to a cropper. One does not need to hazard a guess why this is the case, for all those aggrieved continually point out that the inwannchi's preference for mitumbu (second-hand products), rather than being genetic or instinctIve is all about fInances - or the lack of them.

So from what may have been a very noble venture, KAM seems to have come to an impasse. This is because it would not be very wise to demand the banning or remva1 of initumba from the market since it is all that the common mwananchf can afford, \'et, KAM still needs to promote and protect local industry, as its primary mandate. Mit umba or no niturnba: which way KAM?

One of the outstanding features in this whole set-up has been that whereas KAM - and especially its chair Mr. Chris Kirubi - has been very articulate In challenging the government to create a level economic playing field, it has failed, refused or neglected to address the fact that to create a level economic playing field is a political (not managerial) question whose answers have political foundations. For it has everything to do with the establishment of the requisite political will and enabling environment for any changes to occur and be properly facilitated and managed.

Phrased differently, KAM is looking at the stem and branches of the problem and not the root. It is treatIng the symptoms and not the cause of the disease. Aid the cause of the problem is clear: Kenya is saddled with a mitumba government.

This is the kind of government that asks but never answers. In the case of KAM the asking has clearly gone on for too long. The lack of a satisfactory answer means that, to proceed, KAM needs to apply the necessary pressure to cause some movement. Right now, all we see is motion but no movement. Very senior public officers, including Vice-President George Saitoti, have voiced their concerns about the way foreign industry is decimating local one. But what tangible effort is the government making to enable both the mwananchi and local industry to survive?

Given recent reports, it is doing a lot in the other direction. Has it not been reported lately that it lost KSh. 5804 billion in 1994-95? So much for national survival under this mitumba government. For too long, Kenyans (like KAM) are ready to extend their goodwill to a lackadaisical government which has interpreted its duties to mean th right to loot, lie and lounge smugly thereafter.

33 And the paucity of learning skills in government is distressing. It has, for example, totally refused to be acco u n.tab Le despite the fact that some of the most of the persuasive and coercive methodologies available in the world today have been applied to convince it that being accountable is in its best interests.

One would, for example, have expected that after the Karura Forest debacle, the government would be so morally embarrassed that it would immediately stop the allocation and destruction of forests in the country. Clearly, morals were not made with the Government of Kenya in mind, because we have lately been reading that huge chunks of other forests have been destroyed in the name of harvesting forests in the country. And the Chief Conservator of Forests, Dr, kipkore, was himself one of the people who reportedly benefited from a license to harvest trees. Where else in the world except in a country that is yoked with a mituniba government does this kind of thing happen?

This pervasive greed and lust for property is not restricted to forests. The fate of the Kenya National Theatre (KNT), the remaining centre of the Kenyan cultural'identity, hangs in the balance. The reason for this is again that same mitwnba government where the state appointed Governing Council of the Kenya Cultural Centre - which is supposed to protect, preserve and promote shrines like the KNT - has entered into some unclear arrangement with the Norfolk Hotel and has, through its Chair, Mr. Stephen Mwenesi declined to provide for public consumption the fine print of this aTrangement. Mr. Mwenesi says he will not do so because he is bound by advocate- client confidentiality. Now for someone to be the chair of an organization and its advocate (or the advocate of an interested party for that matter) - like in the case of Or. Kipkore - is simply professionally incestuous.

And this is rniturnbci governance for you. The rule of thumb for this kind of government is that it never gives but always takes. That is why corruption is the living, sleeping and waking nightmare of every Kenyan. And to expect Dr. Leakey - with all due respect to him, his abilities and his commitment - to reign in corruption in Kenya is to ask us to put all of the water in the Indian Ocean in a tin of kimbo.

There is a simple way out; democratic, structural reforms or more bluntly, comprehensive constitutional reforms. A history of theconstitutional reforms process does not need to be repeated here. In a nutshell, it has exposed the total unwillingness of the Moi-KANLI regime to make any changes. And given that it is a mituinbu government, Kenyans have to accept that the Moi-KANU regime will never guarantee change in this country. Md anyway, when was the last time someone working for the K'enyan government got smart and sacked him/herself?

Warninchi have lately been getting restive with this sorry state of affairs. That is why the clergy in Kenya have been earnestly persuading the regime to allow a people- driven process to begin soon. Well, the President has said that he sees the peop[e- ven concept to be akin to mob violence. And he has reason to be afrald for- in this c case who is the most likely candidate for mob lyncling?

34 r.

But with a dispassionate analysis of the whole situatIon, lynchIng is the last thing on the minds of democratic-minded Kenyans. Proof of this is adequate the latest of which is the case where Rev. Timothy Njoya recently pardoned his erstwhile persecutor Patrick Likhotio (of the supposedly non-existent Jeshi la Mzee) who had very vigorously participated in the brazen beating of N)oya on June 10, 1 999. This beating resulted in the breaking of Noya's hand.

And such breakage, damages and injuries are specifically what the democratic movement in this country is not interested in and wants to avoid. The only interest for those with democratic ambitions is that Kenya needs a Constitution that recognizes the mwanancht as the sovereign and is also developed by the mwananchi.

Since the Moi-KANU regime will certainly not guarantee the sanctity, integrity and fulfilment of this kind of process, it is high time that Kenyans began to think up, design, debate and encourage processes outside state control and independent of its manipulation. This is meant to safeguard our national survival and also provide a basis for launching Kenya into a democratic trafectory. I,

One such suggestion has been that religious leaders, given the spread of their respective organizations the respect and esteem that Kenyans hold them in and their broad representative nature should seize the initiative by forming the leadership of a transitional democracy. Theft tenure will be limited and they will not only oversee the constitutional review process but also engage Kenyans in processes that engender economic survival and recovery and the provisIon of securIty for all.

Further, they will cultivate, harmonize and cement Kenyans' national identity and remove the country from the invidious political and ethnic intrigue that has been the calling card of not only the Moi-KANU regime . but also the Kenyatta and colonial ones

Finally, they will guarantee that there is a place in this country for every Kenyan and not for a few well-heeled political and economic walalahais (those who have). These are the Zipporah Wandera's of this country who see no law, hear no law and speak no law and are wandering all over the country in blissful freedom, despite being convicted felons. It is these kinds of examples that illustrate the statement that Kenya has two clear political classes; weriyenchi and wnwichi.

The danger of not solving all these issues means that Kenyans will continue to live in the same quagmire that we find ourselves in. And those who wish to articulate issues unpopular with the state will definitely face the same fate as the jailed Past on Sunday ! editor, Tony Gachoka,

It is very clear that the retention of the status quo will result only in the further harassment and persecution of wancinchi intent on discussing critical national issues. Our best defence hence is the complete overhaul of the playing field; political, sociaA economic and cultural. It is also our best bet for securing Kenya's perpetuity.

35 And the raiization of this is what is behind all those calls for a people-drIven constitutional reforms pcoess. It wouU a'so surely mean an erd to the rnitumba government that rules Kenya today.

hh6, h 26 Testing President Moi's Political Will and His Commitment to a Legacy of a United Kenya )'AUGAMBI KIAI AND WILLY MUTUNGA

President Moi has stated that he is interested in his legacy and that his foremost commitment is to a united, peaceful, multi-ethnic and multi-racial K'enyan society. He has also said he is committed to a prosperous, democratic and lust Kenyan society. 1 know how sceptical Kenyans have been on this issue and that also is for good reasons. President Moi has broken so many promises, so many times, that any promise he gives now may be relecred outright. Kenyans believe President Mol will not retire arid that he is a prisoner of a chosen legacy, a legacy of authoritarianism, corruption, destruction of institutions, violation of human rights, a dependent judiciary, a compromised parliament, a decaying economy, destroyed infrastrueture in educational, social, spiritual and cultural fronts. That list is by no means exclusiè.

No one doubts that it is precisely because of this crystallised legacy that President Mof may want to do something about it. It is up to Kenyans to assist their president on this issue. We have decided to suggest some of the crucial ideas that the president may want to take on board, if he has the politIcal will to seriously address the issue of his legacy. Call us naïve; yes, we may be naïve, but we are also pragmatic and very religious.

President Moi should buy the Kenya Railways and modernise it. The Moi/Nyayo Express that will cover the entire country. It will serve his interests and of others at the Coast, Eldoret, the co-operating and supportive Western Kenya and open up new interests In the Eastern and North-Eastern Provinces. This project will create jobs for the youth, and will make the country accessible and safe to travel in, President Mol has the money to do all this and we are sure no Kenyan will be daft enough as to ask him where he got the money. He is a wealthy Kenyan and that is all there is to Lt.

President Moi should make it clear to Kertyans that he will be retiring on or before 2002. Promises are not sufficient. He needs, first and foremost, to carry out democratic elections in the ruling party KANU. He needs also to accept a formation of government of national unity that shares power with all stakehoLders in the country. Cooperation = has failed and what is required is a focus on national interests that is reflected in the sharing of political power. Such a government can perform crucial economic, social and political roles. President Moi needs to extract himself from KANU and become the father/mother figure for the country. On that basis he can demand that other political parties carry out democratic elections. ,

President Mel is the cause of the jammed constitutional reform process. He has to u jam it and start doing this by supporting the national consensus that is reflec

37 the Constitution of Kenya Review Act. He should despatch the Railn Committee to its long overdue irrelevance, agree on a democratic process that can be crafted from the Act, the amendments made by the ufungamano Initiative and the NCEC and get the comprehensive constitutional process under way. This comprehensive process need not be tied to the general elections.

While the comprehensive constitutional process is underway, there is no reason why special attention cannot be paid to issues of transitional justice (amnesties, retirements, prosecutions, tracing of corrupt monies and grabbed lands etc.), succession and an interim constitution that focuses on free, fair and peaceful elections, Again President Moi can leave a great legacy if he plays the role the colonial government played in the 1961, 1962 and 1963 elections. In our opinion those were the only free and fair elections Kenya has ever had. Although the British favoured the settler and KADU interests, they knew that the nationalistic KANU party was the people's favourite. There was distinct fairness in the affairs of the electoral process with the outgoing colonial power playing the benevolent fair father/mother figure. President Moi does not have to campaign for any of the KANLI potential presidential candidates. In his wise philosophy he should allow the contestants to fry themselves in their own fat' (Wajikaange na rnafuta yco) and hand over to whoever is elected. Whoever gets elected will treat President Moi with the dignity, respect and honour he will then deserve.

President Mol will have to guarantee security to all Kenyans during this transitional period. We have always wondered why cattle rustinj clashes, banditry, and soaring crime should threaten the survival of our nation when our leaders in the Armed Forces keep putting on weight and doing absolutely nothing to keep the country peaceful from domestic and external enemies. President Moi 1s the Commander in Chief of the Armed Forces and he must guarantee the protection of lives and properties of all Kenyans.

The Moi Foundation should set up with President Moi's money to promote scientific research into the cure of HIV-AIDS. It will be a shame if he follows the example of the Jonlo Kenyatta Foundation in which President Kenyatta did not put in a cent It is a shame that such a rich and powerful family as the Kenyatta one has not had the good

and graceful conscience to invoke the African values of "being mindful of others welfare' 1 and assist the landless and the poor with some of their largesse. If President Mci sets up this foundation we i4re sure others will follow suit. Let African philanthropy co- exist in its proud place with the philanthropy of the Kenyan European and the Kenyan Asian-African,

President Mol has had the occasion to point his rungu at the international interests. He has sounded more nationalistic than most of us President Mol has to go beyond this nationalistic rhetoric and give Kenya an idea of how she will fight recolonisation reign10 domination. President Moi should ioin Professor All Mazrui, President and others in demanding reparations for our colonisation and continued

&s_qn 38 Mol: What Would Surprise Kenyans on New Year's Day WILLY MUTUNGA

If President Moi is going to surprise us tomorrow, we have the right to let him know what would really surprise us! Kcnyans would really be surprised if, and this is by no means exclusive, the following happens tomorrow:

A government of national unity that includes Ralia, Kibaki, Ngi!u, Wamaiwa Nyachae and Orengo isformed. Such a government would be premised on a political settlement that undertakes to support whatever democratic process on constitution making is arrived at through Professor Ghai's efforts. That political settlement would also offer solutions for:

• Kenya's security and economic, sociaL cultural and human rights problems;

• KArJU announces a date for its elections and demands of other political parties to do 'ikewise;

• President Moi unveils a national transition programme that he can oversee premised on his retirement on or before 2002;

• President Moi publishes all reports submitted to him by the various Commissions of Inquiry.

• President Mof disbands Njonjo"s Commission as it serves no purpose in view of the impending breaking of constitution-making stalemate;

• President Mol orders the Armed Forces to disband all private armies in the country;

• President Moi focuses on his legacy and invests either in the Nyayo Express, that is a modernised railway system that will provide jobs to youths all over the country, or sets up a Mci Foundation for research into the cure for AIDS;

• As a foremost nationalist, President Mci pronounces his solutions on recolonisation I and foreign dornfnation. L Moi: What Would Surprise Kenyans on New Year's Day WILLY MUTUNGA

If President Moi is going to surprise us tomorrow, we have the right to let him know what wou'd really surprise us Kenyans would really be surprised if, and this is by no means exclusive, the following happens tomorrow; -

A government of national unity that includes Rai[a. Kibaki, Ngilu, Warnatwa, Nyachae and Orengo isfortned. Such a government would be premised on a political settlement that undertakes to support whatever democratic process on constitution making is arrived at through Professor Ghai's efforts. That political settlement would also offer solutions for:

• Kenya's security and economic, social, cultural and human rights problems:

. ICANU announces a date for its elections and demands of other political parties to do likewise;

• President Mel unveUs a national transition programme that he can oversee premised on his retirement on or before 2002;

• President Mol publishes all reports submitted to him by the various Commissions of inquiry.

• President Moi disbands Nlonld's Commission as it serves no purpose in view of the impending breaking of constitution-making stalemate:

• President Moi orders the Armed Forces to disband all private armies in the country;

• President Moi focuses on his legacy and invests either in the Nyayo Express that is a modernised railway system that will provide lobs to youths all over the country, or sets up a Moi Foundation for research into the cure for AIDS;

• As a foremost nationalist, President Mci pronounces his solutions on recolonisation and foreign domination,

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L 40 Moi's Legacy Is His Road to Damascus MUGAMBI KIAI AND WILLY MUTUNGA

Mothirig can bring you peace but yourself Ralph Waldo Emerson

The powers of the Kenyan president have been compared to the cumulative powers of both the Queen and the Prime Minister of Britain, the President of the US and His Holiness the Pope. Among our political leaders it is only Moi who concedes that the powers of the executive are extensive and ought to be changed. There may be a bit of self-interest here. Mol may not want those powers used by another against him. Yet it is in these powers that the destiny of his legacy lies.

We all have our roads to Damascus. President Moi's legacy is his road to Damascus. We believe that for Kenya to be peaceful and non-violent, Moi's conversion has to take place now. He must move in the direction of securing his legacy as a leader who bequeathed his successor a peaceful country.

We believe that President Mci cares about his legacy. And that is our starting point. We believe the issue of his legacy is a burning issue in Kenya, and however sceptical we are, it is an issue that will simply never go away.

We once advised Mol to irivest his money in modernizing the railway system, call it the Nyayo Express, and run it as a capitalist venture. With such a scenario the youth of this country woLild have jobs for years and road carnage would decrease. If he extends the railway line to Garissa he will have started a process that ends the marginalisation of Northern Kenya. We also suggested that a MOl Foundation, fully funded by Moi, could be set up to research into a cure for HIV-A1DS. Both projects are doable; the ratter could be undertaken here and now. Either of these projects would secure Mci's legacy and immortalise his name. This, however, is not all. We believe that there are other issues that are equally important if MoFis to secure his legacy. They all hinge on his power to make the right decisIons. What are these issues?

Mci should immediately announce to all Kenyans that he will gracefully step down when his term of office expires and that come January 2003 he will start his well- earned retirement. There is a broad national consensus that expects this of Mci. Across the political divide such a consensus exists. Mci is too astute a politician not to know this. If Moi insists on another term, either by legal or illegal means, the consequences for the country will be instability and anarchy.

The issue of one's legacy is about taking note of one's weaknesses not always one's strengths. Moi must surely know that Kenya ails in all its vital organs be they economi political, social or cultural, His fellow citizens have no security and have no food

41 economy continues to be in the 'intensive care unit" without any recovery in sight The categories of these ills are legion and cannot be closed. Owning up to his weaknesses reinforces Mors strengths and that is good for his legacy.

No one doubts that Moi has destabilised the opposition political parties. It will be to his credit if he abstracts himself from partisan politics and spearheads a peaceful transition. Those of us who witnessed the process of decolonisatfon will agree that the colonial ad.mirtistration played that role in the 1961 and 1963 elections the only ejections that were free and fair in Kenya. If Moi abstracts himself from partisan politics, he would start by ordering elections in KANU and his successor will be chosen. Other political parties would follow suit. A level electoral playing field would be possIble. and Kenya could have free, fair and peaceful elections. One way for Moi to abstract himself from power is to agree to a government of national unity, wlthout hIm, while carving a role for himself of an elder statesman who oversees a peaceful transition.

No Kenyan wants a rushed constitutional process. Moi could spearhead a constitutional process that has the following features; a constitutional reform that addresses miimal reforms that include issues like succession, amnesty, retirement and free and fair elections and a constitution that is interim and that, in following the footsteps of the South African one before it, addresses the key constitutional principles that the nation will have to address in a comprehensive constItution-making process. A political settlement is possible in parliament. The polarisation that exists in our political leadership is a problem that Moi can solve and thereby diffuse national tensions in the national interest.

Kenvans do not realise how much national consensus there is on what a new constitution should reflect. Sample the following: decentra]Jsation of the powers of the execuUve creation of strong institutions; realisation of gender equity and equality; a modern bill of rights: an autonomous local government that the local communities control as one form of addressing ethnicity and minority rights; proper checks and balances in government: and control of our national resources and our wealth. We have contentious issues, of course, the nature of our economy being one of them as well as the land and citizenship issues. The contentious issues can be addressed by independent commissions set up under the constitutional process. This country can seek solutions to Its problems under a peaceful and non-violent environment.

What Kenyans have called "political will" in government is actually Mol's power and influence. Mci has in his reign appointed men and women of integrity who sought to serve this country. Professor Yash Ghai is the current appointee that fits this bill. What we have seen is the failure to guarantee that political will when these appointees In set about to do their work. They get frustrated from all corners. Moi can secure his legacy for once by allowing his appointees to show him the way out of the country's ills. Given a chance. Professor Yash Ghai can use his expertise and his general public kkupport from Kenyans and the international community to kick off the process. Let us orget that Professor Yash Ghai has always premised his task on a peaceful. and L. non-violent constitution making process, a process that allows all citizens to enjoy their constitutional rights. This means opening up the country to all ideas including those pertaining to constitution making.

The issue of amnesty will also reflect the legacy of the Kenyan oppositIon and Kenyans in general. Moi must accept that this is an issue and allow a debate on it to be undertaken. There seems to be those Kenyans who favour "truth and reconciliation" while others favour "truth and justice. While the former is the path of forgiveness and the making of a dean break with the past, the latter calls for the righting of the wrongs committed. It is only in a national debate that this issue can be settled. One issue about amnesty is clear: our leaders can run, but they cannot hide; and the freedom to run is constantly being curtailed by the citizens of the world, Mol is going to retire and he must make this retirement happen. This decision, too, is within his power.

Staying clear of the road to Damascus is what Moi and the so-called KANU hardliners want, although the final decision is clearly Moi's. This is the path of absIute power and the desire to keep this power at all costs. The risks of such a road are dangerous and continue to condemn this country to a perpetual political precipice. If Moi confirms that h will not retire, we would expect an immediate, unified opposition, agitation for his exit, violence, possible warlordism and civil strife. There are many forces within and without Kenya that expect that Moi will not allow these consequences to happen. These forces ensure that we can bet on Mol caring about his legacy. They expect unwavering patriotism of him.

I I

43 4 non-violent constItution making process, a process that allows all citizens to enjoy their constitutional rights. This means opening up the country to all ideas including those pertaining to constitution making.

The issue of amnesty will also reflect the legacy of the Kenyan opposition and Kenyans in general. Mcii must accept that this is an issue and allow a debate on it to be undertaken. There seems to be those Keriyans who favour "truth and reconciliation" while others favour "truth and justice." While the former is the path of forgiveness and the making of a clean break with the past, the latter calls for the rIghting of the wrongs committed. it is only in a national debate that this issue can be settled. One issue about amnesty is clear: our leaders can run, but they cannot hide; and the freedom to run is constantly being curtailed by the citizens of the world. Moi is going to retire and he must make this retirement happen. This decision, too, is within his power.

Staying clear of the road to Damascus is what Moi and the so-called KANU hardliners want, although the final decision is clearly Moi's This is the path of abs$lute power and the desire to keep this power at all costs. The risks of such a road are dangerous and continue to condemn this country to a perpetual political precipice. If Mcii corifirmsthat he will not retire, we would expect an immediate, unified opposition, agitation for his exit, violence, possible warlordisrn and civil strife. There are many forces within and without Kenya that expect that Mol will not allow these consequences to happen. These forces ensure that we can bet on Mcii caring about his legacy. They expect unwavering patrIotism of him.

43 A Running a Bad Race: Sports Administration in Kenya is Oppressive MUGAMB( KLAI ANID WILLY MUTUNGA

Let everyone sweep in fcmt of his ther) cr door and the whoiLe world will he clearL. - Goethe

Kenya last won an Olympic Gold medal in the 800 metres at the 1 992 Barcelona Olympic Games. Since then, despite the undeniable talent of Kenyan athletes, this medal has eluded our compatriots. Those who have entered the race in the Sydney Olympics scheduled for later this year have been given a 30 0/0 chance, at best, to capture the crown.

Enter Wilson Kipketer, the 800 metres men's world record holder and favourite to scoop gold over the same dftance in Sydney. His name sounds Kenyan, he looks Kenyan and in fact, he is originally from Kenya. But he runs for the flag of Denmark.

Mercenary, philistine, gd-digger, some may accuse. But not when you look at the bigger picture. You see, something happened to Kipketer while he was still a junior cornpetirtg for Kenya. Something to do with administrative high handedness, insensitivity and incompetence.

And when one looks at what hurdler Eric Keter is going through, closer consideration of the state of our sports is called for. Keter. you will recall, took the Kenya Amateur Athletics Association (l(AAA) to court for refusing to enter him in the Sydney Olympics despite his qualification. The court ordered the KAAA to enter Keter in the games but they did not, prompting him to go hack to court to sue the athletics body for contempt.

And similar tribulations starked the marathon team led by Moses Tanul, who was mysteriously removed from the team going to the Oiympfcs. Casting the mind back to the recent past, one can recall that administrative fiat was the senior men's teams complaint at the World Cross Country Championship earlier this year; there was unwarranted interference in the team selection from the management without due consultation with the athletes. This resulted in a major disagreement that continued well into the night preceding the day of the race, Ieavingthe athletes tired, demoralised and destabilised. The team, which was the overwhelming favourite to win the event, could not even manage to secure a placing within the medals bracket due to this energy-sapping and morale-bending rift.

ke no bones about it: talent in Kenya seems to come as easily to Kenya as sweat ears on the brow of an overworked body. Yet, the management of athletics, arid &d all sports in Kenya, is taking the shine out of the abundant talent around. Mere -I- 44 Running a Bad Race: Sports Administration in Kenya is Oppressive MUGAM K1A) AND WiLLY MUTUNOA

Let everyone sweep in front of hi her) own door and the whole wcrJd will be clean. Goethe

Kenya last won an Olympic Gold medal in the SOO metres at the 1992 Barcelona Olympic Games. Since then, despite the undeniable talent of Kenyan athletes, this medal has eluded our compatriots. Those who have entered the race in the Sydney Olympics scheduled for later this year have been given a 30% chance, at bet, to capture the crown.

Enter Wilson Kipketer, the 900 metres men's world record holder and favourite to scoop gold over the same distance in Sydney. His name sounds }(enyan, he looks Kenyan and in fact, he is originally from KenyL But he runs for the flag of Denmark.

Mercenary, philistine, gold-digger, some may accuse. But not when you 'ook at the bigger picture. You see, something happened to Kipketer while he was still a tunior competing for Kenya. Something to do with administrative high handedness, insensitivity and incompetence.

And when one looks at what hurdler Eric Keter is going through, closer consideration of the state of our sports is called for. Keter, you will recalL took the Kenya Amateur Athletics Association (KAAA) to court for refusing to enter him in the Sydney OJyni pics despite his qualification. The court ordered the KAAA to enter Keter in the games but they d1d not, prompting him to go back to court to sue the athletics body for contempt.

And similar tribulations stalked the marathon team led by Moses Tanul, who was mysteriously removed from the team going to the Olynipics. Casting the mind back to the recent past, one can recall that administrative flat was the senior men's teams complaint at the World Cross Country Championship earlier this year: there was unwarranted interference In the team selection from the management without due consultation with the athletes. This resulted in a mayor disagreement that continued well into the night preceding the day of the race, leaving the athletes tired, dernoralised and destabilised. The team, which was the overwhelming favourite to win the event, could not even manage to secure a placing within the medals bracket due to this energy-sapping and morale-bending rift.

hones about it: talent in Kenya seems to come as easi'y to Kenya as sweat n th e brow of an overworked body. Yet. the management of athletics. aiid ad sports in Kenya, is taking the shine out of the abundant talent around. Here L-'44 is one indicator: what happened to the sports personalities of yesteryears who put Kenya on the map of fame?

Talking of the 400 metres, for example, few in the so-called Lihuru generation will not tell you more than that the sport is dominated by Americans, led by one great Michael Johnson. Yet in 1972, Charles Asati, Hezekiah Ngamau. Robert Ouko and Julius Sang captured gold in the Munich Olympics in the 4x400 metres race.

What happened to these and other heroes and heroines? Where are they now? We think of athletes such as Nyandika Mayoro, Serafino Antao, Kanut Sum, Ben Jipcho, Amos Biwott, Naftaly Temu, Henry Rono, Mama Boy, Paul Kipkoech, John Ngugi the Cheruiyot brothers, Ruth Waithera, Joyce Odhiambo, Geraldine Shitandai and Helen Kimaiyo among others. Not to forget Kiprugut Chuma, who was the first Kenyan to win an Olympic medal: a bronze in the 1964 Tokyo Olympic Games.

Recently, newspaper editor Roy Gachuhi traced the disappeared football greats, who have faced the same neglect as the athletes. Many have died while some are Jivig in abject poverty and misery. Indeed, an ex-international football player has been witnessed being denied entry to a football match because he could not afford to pay the entrance fee.

Kerlyan boxers too have been plagued by the same predicament. Yet in their day they would easily even scoop the Kings Cup trophy in Thailand, pounding all their opposition on their way there. The "hit squad" was doing all the hitting in those days. Nowadays, they just get hit. Every time Indeed, one can see a day soon when no Kenyan boxer will qualify for the Olympics.

Yet they have outstanding forebears. Phillip Waruinge, Isaiah Ikhorri, John "Pipino" Wanyolke, Patrick "Mont" Waweru, Ibrahim "Surf" Bilali, James "Demosh" Omondi, the late Robert Wangila and Chris Sande head an impressive list of boxing legends. "lDemosh Is nowadays a part time referee, but is clearly the better for wear, neglected and forgotten. One former great (whose last name ironically is Moi) has lost his eyesight with no one to take care of him or bother with his plight.

What about the hockey greats, one of whom Chris Otambo, passed away the other day? Names like Philip Omany, Lucas Alubaha, Peter Akatsa and so on led a stellar group that was dreaded worldwide. They commandedthe respect of both IndIa and Pakistan, which were then the superpowers of field hockey.

Where are they now? Clearly, there is a great deal of shabby treatment of Kenya's great sons and daughters of sport. Indeed, all great Kenyans have been shabbily treated gIven that the leader of the Muu Mcu Field Marshal! Dedan Kimathi still remains interred in the grounds of Kamiti Prison, amongst those convicted of common theft, robbery and murder.

The point being made is that the very same inhumanity, insensitivity and harshn with which the Moi-KANU regime treats wananchi pervades into sports, an area

45 Kenyans have natural ability and talent, resulting in declining standards and output. Talk about a reversed Midas touch: a human resource being plundered and pillaged.

Several things can be done to reverse this and take Kenya to the dizzying heights It once reached. Firstly, the sports arena needs urgent reforms, There must be greater accountability and transparency in the management of sports, especially to those it directly affects: the sportsmen and sportswomen.

Secondly,, the government needs to, together with other stakeholders, come up with a sports policy that will address not only the youth but also those who retire from sports. Today, one only sees haphazard and very confusing signals where, for example, the youth team is rescued from eviction from a residential camp by a Provincial Commissioner! And retired heroes and heroines simply disappear into thin air.

Compare with Brazil where Pele was once the sports minister or Germany where Franz (The Kaizer) Backenbaeur led their successful 200 world cup bid (as did Sir Bobby Charlton for England). It is not then by happenstance that these countries continue to post impressive results in sports? Can Kipehoge Keino not head the Mir fistry of Sports in Kenya?

The sports policy would incorporate how the sports personalities are nurtured, trained, assisted financially and given moral support. They should be protected from exploitative contracts and agents who would like to ride on their talent. There is a need to also provide for medical insurance for sportsmen and women, as well as ensure that their welfare is totally catered for.

Moreover, the policy should address the issue of incentives for these sports people. For example why should they have problems with the customs department for importing vehicles that they have won in an event while Parliamentarians have been very busy waiving such obligations for themselves?

Thirdly, there should be an honours role for outstanding sports personalities. Such personalities should be glorified and uplifted and should not, for instance, have to pay for gate charges at sports stadiums. And they can be used to market and sell sports to our children. They are also outstanding ambassadors for the country.

Fourthly, the government needs to be more articulate in defending and promoting Kenyan sports personalities. One recalls the way John Ngugi was abandoned by the

23 government when he refused to submit a urine sample on grounds that he had been humiliated and treated badly by the World Athletics Federation. Compare it with the case of Javier Sotomayor of Cuba the Cuban world high jump reord-holder who 12 when faced with a doping scandal was assiduously defended by his government. The cases of Linford Christie of the United KIngdom and Merlene Ottey of Jamaica also come into mind in this regard.

hly,ali sports people should be allowed to organise freely. What Kenyan athletes n witnessing are total dictatorships in their various disciplines. Recall when hLe 46 the captain of the Women's Hockey Team Helen Chemtai was axed from the team for articulating players' grievances? This is a regular feature of sports admin!stration In Kenya. indeed, the tribulations of Keter and Tanui largely result from their agitation for better treatment.

It is commendable that the athletes are beginning to not only organise themselves but also articulate and agitate for their rIghts. They need to stick to this if they are going to get anywhere. They need to collectIvely resist dictatorship.

The message to the Moi-KANU government should be loud and clear now. Kenyan sports can remain a large export. Yet, due to neglect, greed and authoritarianIsm, the goose that lays the golden eggs is being slowly strangled. This has happened in other fields: in agriculture, co-operatIves, tourism, educatIon, health, infrastructure and so on.

Bad governance invariably exhibits itself at all levels: the home, school, office and at the national level. In Kenya, It Is denying wananchi the enloyment of the fruitsof their natural talents and, as in the case of Wilson Kipketer, creating a rain-drain.'This is unacceptable. If there Is a lesson to all of us, it is that as someone once said, inhumanity is its own poorest servant.

474 What Is This Co-operation? MUGAMBI KIAI

Currently, the most popular word in Kenya's political vocabulary is co-operation. Two of the main opposition parties - the National Development Party and Ford Kenya - are in a yet-to-be-dearly-defined working relationship with the ruling party, KANU, i.vhich has also reportedly made overtures to two others, the Democratic Party and Safini. The position of Safina in all this is not yet dear, but the Democratic Party has openly rejected this move. It is also not yet clear which other political parties have been quietly approached by KANU to co-operate.

Nowever, it Is not the number of parties that have been approaded that is important. Nor does it matter how many have accepted or rejected KANL1's proposition. What gnaws is that the co-operation syndrome confirms the long-held view that KAN6 and the opposition are as identical as peas in a pod. It is also worrying that this trend is really the introduction of single-partyism through the back door.

The acceptance of co.-operation as a political strategy means one of two things. Either that the weaker party in the co-operation deal is so feeble that it needs the stronger one if it is to survive, or that the weaker party believes that there is nothing wrong with the principal philosophy of the stronger party but has a few working differences with it. Put another way, Both Ford-K and NOP are so weak that they will cease to function without KANU and only differ on logistical aspects.

Clearly, the first of these propositions - that these parties are too weak to survive on their own is incorrect. Which means that Ford-K and NDP are co-operating with KANLI because they are so similar and they have only minor differences with it, for example who the head of the party is. And this is not a trait that is confined to NDP and Ford-K alone. A study of the operations of all the main political parties in Kenya fails to differentiate most of them, save for their names, the different personalities involved in them and the different tribes from which they come.

The sad conclusion to be drawn from all this is that the different political parties are of the same mould as KANU and being suit-cut from the very same cloth. One wonders why they should then be in the opposition if they demonstrate a shared mission, vision and nwdus operandi with the ruling party. Indeed, why don't opposition political parties stop wasting Kenyans' time and simply wind themselves up, rejoin KANU and operate therefrom? Why should they go through this charade of being called opposition parties while some of them are more ruling than the ruling party itself? hinip)e. Because the single-party state does not afford them the same opportunities multi-partyism does. One can ascend to presidency on an opposition ticket now, as impossible to do under the one-parry state. And one can announce himself

49 to an inattentive president and public by simply forming an alternative political party, which offers certain economic and social benefits'. This is political greed, opportunism and expethency at its very best.

it is, however, not to be contended that the opposition is wholly irrelevant. They have provided va]iable assistance to Kenyans - although rarely - in terms of political space in the country. A good case in point is their support for the constitutional reform in Kenya. However, it is to be lamented that such positive activities, which have been added to the sum total of freedom, justice, equality and fraternity, are few and far between, being more the exception than the rule.

Wors, this further indicates that the transition to the pluralism has only been achieved in form and not substance. The political inconsistencies and deficiencies that made single-muitipartism self-defeating continue to rule us from the constitutional grave we consigned them to in December 1991 - They have not been renounced in Kenya, and although not official party policy, are in wide practice. President Mci can be credited with having expressed a deep discomfort with multi-partyism. Not so Jhe opposition, however, who are guilty of preaching water and drinking wine in this respect.

Those in the opposition who are in co-operation with KANU say that they are doing so to guarantee development. This is ironical, as the provision of development was the very excuse KANU used to relect rnulti-partism during the clamour for pluralism at the beginning of this decade. It was also the excuse that KANU used to establish a formidable executive at the expense of alternative centres of political power and the fundamental human rights of Kenyaris. Are our memories this short?

If KANU could not guarantee development in single-partyism, how can it surely do so now? And is the convening of harambees really development? Isn't it true that all that is done with the colossal sums raised in harambees is to build hospitals that have no drugs, schools that have no books (and now teachers), districts which have no roads and roads which have no longevity? And is it not true that harambees are one of the main ulprlts for the endemic corruption and looting of our economy?

I am not saying that hararnhees have no role to play in Kenya' struggle against poverty. What I am questioning is the role of the state - and by extension the political and social elite - in this activity which is detrimental to the national good. For too long, th,e state, as represented by the social and political elite, has been the majority shareholder in harambees by a long margin. Instead of being mere facilitatprs and lending assistance to the inwananchi, these elite have taken ownership of the proess, so much so that the inwarinnchi is of secondary concern, So when there is outright extortion of funds, pilfering of monies, diversion of national resources and pillage of the economy because the wctheshirniwa have to give hefty sums of money, who gives a 75 damn? A And who cares if the co-operation between political parties, rather thank:it to an inattentive president and public by simply forming an alternative political party, which offers certain economic and social benefits. This is political greed, opporwnism and expediency at its very best.

It is, however, not to be contended that the opposition is whoLly irrelevant. They have provided valuable assistance to Kenyans - although rarely - in terms of political space in the country. A good case in point is their support for the constitutional reform in Kenya. However, it is to be lamented that such positive activities, which have been added to the sum total of freedom, justice, equality and fraternity, are few and far between, being more the exception than the rule.

Worse, this further indicates that the transition to the pluralism has only been achieved in form and not substance. The political inconsistencies and deficiencies that made single-multipartism self-defeating continue to rule us from the constitutional grave we consigned them to in December 1991. They have not been renounced in Kenya, and although not official party policy, are in wide practice. President Mol can be credited with having expressed a deep discomfort with mfflti-partyism. Not so 1the opposition, however, who are guilty of preaching water and drInking wine in this respect.

Those in the opposition who are in co-operation with KANU say that they are doing so to guarantee development. This is ironical, as the provision of development was the very excuse K'ANU used to reect multi-partism during the clamour for pluralism at the beginning of this decade. It was also the excuse that KANU used to establish a formidable executive at the expense of alternative centres of political power and the fundamental human rights of Renyaris. Are our memories this short?

If KANLI could not guarantee development in single-partyism, how can it surely do so now? And is the convening of harnmbecs really development? Isn't it true that all that is done with the colossal sums raised in hrambees is to build hospitals that have no drugs, schools that have no books (and now teachers), districts which have no roads and roads which have no longevity? And is it not true that I?tln?mbees are one of the niain culprits for the endemic corruption and looting of our economy?

I am not saying that hw-arnbes have no role to play in Kenya' struggle against poverty. What 1 am questioning is the role of the state - and by extension the political and social elite - in this activity which is detrimental to the national good. For too long, the state, as represented by the social and political elite, has been the rnaority = shareholder in harwnbees by a long margin. Instead of being mere facilitators and lending assistance to the rnwc?nmchi, these elite have taken ownership of the process, so much so that the mwunwzchi is of secondary concern. So when there Is outrIght extortion of funds, pilfering of monies, diversIon of national resources and pillage of the economy because the waiwsifliniwa have to give hefty sums of money, who gives a damn?

And who cares if the co-operation between political parties, rather than knit

49 A as one people, further amplifies our ethnic identities and differences? For make no mistake, when KANU and NEW are in co-operation it is perceived and feted as an agreement between the Kamatusa and Luo. What then happens to the members of other tribes who may support these parties and may have even sacrificed life and limb for them?

in all this doom and gloom, it is at least very clear that the co-operation syndrome should serve as a spur to us to begin creating viable political options for ourselves so as to re-invigorate our national life. Should this warning not be heeded1 we need not look far to see the huge disast:er that looms, In Zambia, the euphoria of the ejection of Kenneth Kaunda by Erederck Chituba was very short lived as nothing really changed. The oJd habits - including political repression - continued, proving that Kaunda and Chluba are different only In name (and tribe, of course). in Kenya, we should loathe to make the same mistake for we have persevered this paint suffered this ignominy and tasted this bitterness for long enough.

50 Our CriSis of Political Leadership Continues MUGAMBI KIAI AND WILLY MUTUNGA

What is not said is what divides us Professor Francis Madeng Deng, a South Sudanese scholar

Whatever is not said invariably constitutes what in political parlance is called the hidden agenda" and may be the cause for domination, lies, deaths, insecurity and vioLation of the national interest.

Our crisis of political leadership continues President Mol still keeps Kenyans guessing whether or not he will retire in 2002. The Raila law is pegged on the succession issue and the hidden agenda is to craft a constitution that will guarantee whatever succession suits the Moi-KANU regime. Ratla Odinga hopes that he will be able to contest political power under this dispensation.

The political opposition does not speak with one voice. Some political parties are ready to participate in the elections whether or not there Is constitutional reform. The fact that the current electoral laws make the electoral field not level does not seem to worry these parties. The message to their supporters is that KANU is beatable on the current constitution, a lie that has been proven twice in 1992 and 1997. Certainly the OP, FORD, SEW and the collaboratioriists, the NDP. Kenya Social Congress and a faction of SAFINA fall under this category. Sometimes these parties claim to support the Ufungamario initiative, but they only deceive themselves by such a claim.

Then there is the Muungano wa Mageuzi. The movement started by emphasizing the need for constitutional reform. The movement pledged to boycott elections If no comprehensive reforms took place before 2002. Recently the movement has taken up Matiba's clarion call since 1992, namely, "Mci must go." The movement has called for mass action to force the Moi-KANU regime out of offIce. What is not being said by the movement is who will replace the regime and in what way they will be different from the regime. The movement keeps us guessing its programme, manifesto, ideology and its political direction. What is clear is the known political falsehood of see* ye the politiccil kingdom and prosperity will come unto you.

Political opposition, therefore, does not mean a fundamental change to the status quo I but a struggle for raw political power with a clear vision of continuing the legacy of the Moi-KANU regime, a true reflection of the politics of Nyayoism. This explains why, except for Peter Anyang' Nyong'o, no politician that we know of has called for the fundamental re-negotiation of the re-coIonialist policies of the World Bank, IMF, WTO and the multinational corporations.

51 Our Crisis of Political Leadership Continues MUGAMBI K1A1 AND WILLY MUTUNGA

What is riot. said is what divides us Professor Franc±a Maderig Deng, a South Sudanese scholar

Whatever is not said invariably constitutes what in political parlance is called the thidden agenda" and may be the cause for domination, lies,, deaths, insecurity and violation of the national interest.

Our crisis of political leadership continues. President Moi still keeps Kenyans guessing whether or not he will retire in 2002. The RaUa law is pegged on the succession issue and the hidden agenda is to craft a constitution that will guarantee whatever successin suits the Mol-KANU regime. Raila Odinga hopes that he will be able to contest poIitial power under this dispensation -

The political opposition does not speak with one voice. Some political parties are ready to participate in the elections whether or not there is constitutional reform. The fact that the current electoral laws make the electoral field not level does not seem to worry these parties. The message to their supporters is that KANU is beatable on the current constitution, a lie that has been proven twice in 1992 and 1997. Certainly the OP, FORD, SDP and the collaborationists, the NDP, Kenya Social Congress and a faction of SAFINA fall under this category. Sometimes these parties claim to support the Ufungamano Initiative, but they only deceive themselves by such a claim.

Then there is the Muurigano wa Mageuzi. The movement started by emphasizing the need for constitutional reform. The movement pledged to boycott elections if no comprehensive reforms took place before 2002. Recently the movement has taken up Matibas clarion call since 1992, namely, "Moi must go" The movement has called for mass action to force the Moi-KANU regime out of office. What is not being said by the movement is who will replace the regime and in what way they will be different from the regime. The movement keeps us guessing its programme, manifesto, ideology and its political direction. What is clear is the known political falsehood of seek ye the political kingdom and prosperity will come unto you.

PolitIcal opposition, therefore, does not mean a fundamental change to the status quo but a struggle for raw political power with a dear vision of continuing the legacy of the Mol-KANU regime, a true reflection of the politics of Nyayoism. This explains why, except for Peter Anyang' Nyong'o, no politician that we know of has calledfor the fundamental re-negotIation of the re-colonialist policies of the World Bank, IMF, WTO and the multinational corporations.

51 The private sector in Kenya has adopted the politics of running with the hare and hunting with the hounds. In most countries the private sector enslaves politIcians, but in Kenya the private sector is the slave of politicians. The great leaders of this sector will rarely countenance a political career. Unable to spearhead a national economy of any sort, the private sector has become an outpost of globalisation glorifying a magendo and rnitumba economy as the nation's only option.

The Ufungamano Initiative and the National Convention Assembly (NCA) are two initiatives within the civil society that have constantly called for comprehensive constitutional reform. Both initiatives are the main pillars of parallel initiative in constitution making. Within these initiatives there are discussions to boycott the elections, the belief that the clarion call "Moi must go" is about the capture of raw political power without changing Moiism. Within these initiatives fundamental restructuring of the Kenyan society is discussed through the entry-point of making a new constitution. A discussion of the new world order is constantly taking place and issues of a new ideology for Kenya with its new political leadership has beei the clarion call from these initiatives, One can say that It is within the civil society initiatives that what constitutes national interest is properly understood and analysed.

The main problem with these initiatives is that they stilt seem to regard polItics as "dirty" and constantly refuse to accept political leadership. While a vibrant civil society will always act as important checks and balances in society, it must offer Kenyans an alternative political leadership. These initiatives and others in the civil society must thInk seriously of a political party that has a leadership that is different (in Its ideology, programmes, vision and track record) from what we currently have from the existing political parties.

The international community is committed to change through periodic elections. When the elections are neither free nor fair the international community rarely takes a decisive step unless its vested interests are involved. The International community normally backs the incumbent unless a clear alternative is available and discernible. The international community is not homogeneous and it, too, tends to adopt the politics of running with the hare and hunting with the hounds.

This is the sItuation the Moi-KANU regime finds itself in, a positive political situation for it to retain power. The opposition talks of a "single presidential candidate" without commitment, and hopes to inherit the regime's machinery of violence intact so as to thrive on the politics of intimidation and patronage.

Kenyans have a golden political chance to resist the politics of the status quo and agitate for their national survival through the politics of basic needs. We must say NO E to what divides us: ethnicity, racism, religion, gender, generation, regions and Niiqtes/ Bantu divide. We can now insist on the kind of political leadership that is different from what we have had since independence and actually get it. We can return Kenya its regional and continental leadership and not a leadership of the corrupt nations world. We can address the root causes of poverty and not succumb to charity 52 and dependence. We must re-negotiate our survival in a hostile global environment.

Ours is a crisis of politIcal leadership. How can we develop if our polItical leaders hate to think of what are possible optIons to our poverty? Is there a country where political leaders constantly attack "armchair theoreticians" as it happens in Kenya? Of course these political leaders have theories of their own, theories that are opposed to change and progress.

We must not let this golden opportunity slip by while we seek leadership from our political leaders who have reflected striking bankruptcy of ideas.

53 A I

L~L~54 B. torruption in Kenyain Politics Youth Fund: Harambee Spirit Has Lost Meaning MAINA KIAI

The proposed Youth Development Fund has created a lot of excItement, and this, for understandable reasons

While some see it as an excellent idea with the noble goal of generating support for youth, others see it as yet another gimmick to raise unaccountable funds that will be used as a campaign weapon to ensure KANU wins next year's election.

Almost all the public support for the fund has come from K'ANU stalwarts on the basis that President Moi backs the idea. Conversely, most of the public criticfsi has come from members of the opposItion, some of whom instinctively oppose anV idea proposed by KANU.

There is little public information about the intended use of this money that is being solicited through various means including force and the check-off-system as well as voluntarily. All we have are vague references that the money will be used to "uplift the living standards of youth: But what "youth" are we talking about here? Remember some of the old professors in YK'92? Who will determine how the money is used once it Is collected? Will it be audited to ensure accountability? How long will the fund operate?

Without answering these questions, we cannot escape the conclusion that the proposed harambee for the fund is the beginning of the re-incarnatIon of YK'92. The Editor of the Nairobi Law Monthly, GItobu lrnanyara, wonders why there is sudden concern for the plight of youth just before an election year. "Yet," he says, "the youth are a permanent section of society, with permanent concerns and problems. These concerns need a permanent approach that 1 well though out and institutionalised in Government policy and approved by parliament!"

For some reason, this fund Is clothed in a blanket of opaqueness. The only public pronouncements from the Government are pleas to k'enyans to donate generously, In criticism of the Opposition for questioning the fund, and denials that the fund will benefit KANU members only. Consequently, one is left with the feeling that the harambee organisers will eventually hand over an open cheque for KANU leaders to do whatever they want with the money.

When originally conceived, harambèe contributions were meant to augment the development efforts of all Kenyans directly. Harambee was also seen as a way to help government in that endeavour. Indeed, the word means "pulling together. and t, originally, mean contributing money. it meant contributing labour and material.

h~ 56 According to Imanyara, the original concept has been bastardised to unrecognisable levels. "Today1 one cannot run for any offke, whether in a co-operative society, trade union or parliament 1 without people looking at One's contributions. And personal harambees such as for pre-weddings, for school fees and hospital bills are more important than the public ones." Because of these attitudes, we have, as a society, decided that leadership is the preserve of the rich. And we couldn't care less where this wealth came from or how it was acuired, as long as some of it flowed back to us. By doing so, we have reduced our freedom of choice.

"Thus," Mr. Imanyara continues, "people associated with some of the most famous financial scandals are now seen as leaders or determiners of leadership." The problem is worsened by attitudes that the !ob of elected officials is to bring development, not raise questions that may address the fundamental questions of poverty and lack of democracy in Kenya. Nominated MP Moses Wetangula captured the essence of this attitude when he told his parliamentary colleagues, Mr. Saulo Busolo and Mr. John Munyasia, that some of the Sh70,000 a month salary MPs make should be doiiated in harambees.

This view encourages the pilfering of public funds on the one hand and sycophancy on the other. Pilfering of funds because one has to be entrepreneur extraordinaire to be able to contribute massively at so many harambees, sycophancy because the other way of bringing development is to be close to the President who can then order development in one's area. Remember the reward of water that Bondo people got from President Moi for Jaramogi's co-operation deal?

The recent Public Investment Committee report gives name of people who have contributed to the economic mess in Kenya. And most of those people are well-known contributors during harambees, or are close friends to people who are. Will the government take any steps against any of these people now that they have been exposed? Most likely not. The message, therefore, is that provided you are royal 1 you can do whatever you want with public property so long as it does not attract the wrath of.the World Bank/IMF.

Like most negatives in Kenya, these attitudes have a long history. In the 1960s, President Kenyatta publIcly attacked freedom fighter Bildad Kaggia for not having done anything for himself while the others they had been jailed with in Kapenguria were busy making money and acquiring property. And in the 1980s, there was little public sympathy with Robert Matano when he pleaded for transport to take his belongings to Mombasa after he was fired from President Moi's cabinet.

Mr. Imanyara also sees another side to the harambee issue: That harambee and donations have replaced the role of Government in development. 'Take Kiambu as an example," he says. "The likes of Kuria Kanyingi and Stanley Githunguri are stepping in with sizeable harambee donations to do what Government should be doing in this area. The reward for doing this is public office., and also the chance to becomeA candidates on a KANU ticket. While in office, they can do whatever they want w their positions."

57 The worst thing about the harambee issue is the public acceptance of funding regardless of its source. Even religious organisations are all too quick to accept money from whatever source, never questioning whether this is the fruit of.corruption or theft. And do not be fooled that the contributions are even one percent of the proceeds of the corruption and mismanagement. They are paltry sums that do not affect the giver's pocket.

But beyond condemnation, what can be done? As with most problems affecting Kenya, there is a need for political will. Once that is in place, the rest will be relatively easy.

Civicgroups and religious organisations should start by re-educating the public about the role of leaders, and the fact that harambees and wealth should not be a ticket to leadership. in this education, emphasis should be placed on investigation and questioning the source of harambee funds.

Secondly, the state anti-corruption crusade the Government has begun should be extended to public leaders. All leaders should declare their wealth and how thegot it and also release their annual tax returns publicly. This would let us compar'the amount of taxes paid with the amounts of donation given. Mr. Imanyara also feels that the Income Tax Department should take a pro-active role, tracing the tax files of those who donate 'generousIy and ensuring their taxes are commensurate with their donations.

Will the government do this now that it seems to have taken "the road to tDamascus to use Mukhisa Kituyi's words? As we wait to see how this works out, let us keep track of harambee donation and get our mathematics caps on.

Assuming that public donations represent one per cent of income, let us calculate and figure out the income of the powerful in Kenya. I bet the results will show that 50 of them or so have an income equal to the aid the country receives each year. Illegal Ban On Seminars WILLY MUTUNGA

It has been reported in the local dailies that the authoritIes in Embu and Lodwar have disrupted and banned church organIzed seminars In those dIstricts, while the Kajiado's dIstrict CommIssioner has warned that he will ban such seminars within his jurisdiction. There have been veIled threats that such bans will engulf the entire country. The Catholic Justice and Peace Commission has protested these illegal reasons. The Citizens Coalition for Constitutional Change (4C's) supports the CommissIon's protest and makes the following observations.

• The Puhlic...Order Act, which the respective District Commissioners are invoking as the legal basis for their action, does not empower them to ban church-organIsed seminars. We urge these civil servants to respect the law and uphold it ThislAct is unconstitutional and immoral and while its repeal is long overdue these civil servants are not familiar with its provisions. The administrative orders that they give based on this Act are illegal, null and void. The commission is right when It urges Kenyans to treat the bans with the contempt they deserve

• The Churches do not make the distinction between spiritual and developmental vocations that the civil servants are making. The danger here is that these civil servants have now moved to a religIous terrain they know nothing about. Whatever is done by the religious organizations is within theIr spiritual mandate, which the - Act does not cover and which is similarly protected under the constitution. Whether it is civic education, discussions on the constitution, digging up wells or talking to the, press, all this is done in the name of the Almighty God and the government has no business interfering with the freedom of worship.

Religious organizations are the conscience of the natIon and they are more aware of the problems at both the urban and rural grassroots that the government can ever claim to be. It seems that the government wants to control the activities of these friends of the poor. If it were not for the religious organizations in this country, who would furnish the basic needs of the people? In many of these areas the government contribution is negative.

The 4C's have again demanded that the routes to the Kenyan grassroots be opened to all individuals and organizations in the name of democracy. These routes are blocked by colonial repressive laws (arid where the laws do not assist by illegal admInistrative fiats similar to the ones referred here), state violence and intimidation, naked intolerance and a culture of fear. These routes must be unblocked so that all ideas can contend at the grassroots. It is obvious to the state that the system sees the grassroots as the malnstay of power and that is why it reacts violently to projects that are taking p

59 there. With the coming General Elections, these civil servants are already showing their partisanship and they have extended their machinery of vioknce to cover churches. For them, their harassment of the opposition political parties NGO's and the wnanchi in general is not sufficient. They have been known to march into mosques with their shoes on. They have stormed into churches. There must be an end to these illegal and immoral activi vies.

The Catholic Church is one of the pillars of the broad initiative we call the 4C's. We salute the Church's stand on constitutional reform. We support the Church's constitutional project, which is growing at the grassroots. We support the Church's leadership in the area of constitutional reform. We support the Church's civic education programmes. We pray that the Almighty Allah/God gives the Church the strength to spearhead the struggle for constitutional reform and the strength to resist the state's encroachment on its constitutional rihtof worship.

h~L fia there. With the coming General Elections, these dvii servants are already showing their partisanship and they have extended their machinery of vioknce to cover churches. For them, their harassment of the opposition political parties, WGOs and the wQnanchi in general is not sufficient. They have been known to march into mosques with their shoes on. They have stormed into churches. There must be an end to these illegal and immora' activities,

The Catholic Church is one of the pillars of the brocJ initiative we call the 4C's. We salute the Churchs stand an constitutional reform. We support the Churchs constitutional project, which is growing at the grassroots, We support the Churchs leadership in the area of constitutional reform. We support the Church's civic education programmes. We pray that the Almighty Allah,'God gives the Church the strength to spearhead the struggle for constitutional reform and the strength to resist the states encroachment on its constitutional rght of worship.

i'.

kLI 60 The Social-Political Dimension of Corruption in Kenya MUGAMBI KIAI

Recently when two Kenyan boxers were disqualified from partIcipating in the Commonwealth games for being overweight, it was remarked that Kenyans have perfected the art of "eating" so much that we have now began to export it. Funny as it may sound, this observation represents a national tragedy. CorruptIon the chapter has now become corruption the book about Kenya.

Hon. Nicholas Riwott would have us believe that corruption is not a Kenyan problem and was exported from the orient, at least if comments he made during discussion with visiting European Unionofficials on September 4 this year are anything to io by. Later on, President Moi added that he cannot be everywhere at the same tinle to ensure that it does not occur. For the ordinary Kenyan who has to pay increased taxes, endure poverty and live with inflation due to corruption, these were words that offered scant comfort.

If Bill Clinton is threatened with impeachment for lying about his irricit sexual trysts with Monica Lewinsky, the time has come for Kenyans to begin thinking about what should be done to hold the government accountable for its acts and omissions. The kind of serious approach to critical issues that government should engender is totally lacking in Kenya. Kenyans hear a lot of hot air about the fight against corruption but see no action; the governmenrs motto in this must surely be "promise everything but deliver nothing."

Some may say that it is irrelevant to know where corruption came from. That it does not matter whether it came from the orient, Mars or the centre of the earth and what is important is to eradicate it. This view is flawed. To eradicate corruption in Kenya, it is important to understand its socio-political roots, Why? Because far from being a simple economic problem, corruption has a social-political dimension that must be understood if any constructive actIon is to be taken to uproot it.

Corruption in Kenya did not come from the orient. Its roots can be seen in colonial Kenya where the British turned a blind eye, as it was practiced by the very Chiefs they appointed to control local inhabitants. The colonialists needed the support of these Chiefs and could not afford to antagonize them because they faced a lot of hostility from the local population whom they had disinherited and disenfranchised. Little wonder then that Chief Kinyanjui of Kiambu acquired 16,000 acres of prime land in the area of his lurisdiction. 739 of the 1576 huts in his location were in his property I and this put the local villagers firmly in his control.

61 And this has been the kind of thinking that has characterized the politics of both post-independent governments in Kenya. It has been imperative that those in power also dominate the economic resources in this country, to ensure that they keep a tight lid on things in Kenya. Today, Kenya's economic resources rest largely in theliands of a tiny but favoured minority who then use them to keep the majority in line the classical case of the rule by carrot and stick. It is no wonder then thât the ruling party demands support from the ordinary ,nwnnthi if they are to receive any development. It is also not surprising that KANU uses its vast economic resources to entice the defection or cooperation of the opposition,

And it is this socio-po]Jtical background that Kenyans must address if they are to conquer corruption. Although corruption has been good for the social and political elite, it has laid this nation to waste. As such, it must be eradicated, the sooner the better. And to eradicate it, Kenyaris cannot limit themselves to the so-called economic solutions like renegotiating teachers' salaries and tightening tax collection. The challenge will also be on how to reduce the influence of the political and social elite in the economy. Liberalization, the reduction of the president's powers over all seors of the economy such as agriculture, tourism and mining and the requirement that all those running for electoral office declare their wealth are some measures that need to be taken on the socio-political front to curb corruption. For it is a. fact that any solution that ignores the socio-economic ramifications of corruption is doomed to failure.

62 Corruption: The Unspoken Foreign Connection MIJGAMBI KIAI AND WILLY MUTUNGA

There was a story to the effect that in the last national erections in Uganda, a frustrated Ugandan formed a political party whose sole project was to get the British back in Uganda. The project failed and it Is said the Ugandan answer to that project was that the British had never left!

There used to be the time when all our ills were because of foreign domination. That was the position of the left in Kenya during the so-called cold war. British colonialism, it was argued, was the root cause of all our probJems Independence broUght in exploitation by many nations and made the situation worse. Neo-colonialism was simply recolonialisation and independence was nominal. The clarion call "the struggle continues" reflects this view of independence. So has the clarion call of "the 4econd liberation" reflected the same view, although this second clarion call assumes that there has been "first liberation" in the first place, perhaps a false view depending on how Independence is viewed

There is no doubt that independence gave the forces of recolonisation a perfect cover, ample room to manoeuvre from the background. The root cause for all our ills was now confined to our national leadership. The nexus between the national leadership and the foreign forces ceased to be analysed (except by the Kenyan left, a band of intellectuals who did not command any popular base) for various reasons: analysing the nexus between foreign interests and the national leadership was seen to be a dangerous political tactic because the latterwould blame all the societal problems to the global environment. The national leadership has clearly tried to shift blame without much success These recolonisatIon forces have not been idle. They have constantly launched furious propaganda to the effect that they are the do-gooders, the aid givers and that if our country cannot get out of its problems we only have ourselves to blame. we agree that whatever happens to Kenya, Kenyans have themselves to blame. In matters of analysing our situation we cannot take that analysis out of the so-called global vilLage.

In one specific area where the nexus of the national leadership and foreign interests has been strikingly lacking is the debate on corruption. Yes, Kenyans are to blame, = but consider the following scenarios:

. British colonia lists committed the original sin of land grabbing in Kenya. They did not pay for the land they took forcefully from the Kenyans. At independence they sold the land to Kenyans under a constitutional arrangement that validated these defective titles to land.

• Are the foreign banks that accept accounts from Afrfcan leaders, includi

63 own, not aware that the bulk of the funds are stolen? In cases where they are aware, what have they done to assist the societies that are suffering because of this looting and corruption?

• Was it not easy for the Dutch company that sold the presidential jet to Kenya to find out whether this was an irregular transaction? Was not the Canadian Company that constructed the Eldoret airport aware that this was an unauthorised expenditure? Granted the name of the game is maxiniisation of profits and mininiisatfon of loses, but where lies the moral obligation of these companies to the Kenyan people? Or is there no moral obligation at all?

• Those drug companies that sell expired drugs to civil servants know very well what the consequences of these drugs are If it is true that some foreigners and foreign interests have accepted plots in Karura, can they be heard to say that they are blameless?

These scenarios bring us to the dispute that has been constantly reported In the cost editions of the mainstream media and was covered by the Sunday Nation of May 16. This is the issue of the Canadian company that wants to carry out mining activities in Kwale, and is reported to have already spent 250 million shillings in prospecting. judging by what has been covered in the press, the issues are: whether the people in Kwale want to lease their land for 21 years for whatever rent they are being offered; the priority of this project when the basic needs of the people are taken into account; the procedures of consultation and participation in the discussion of the project by all stakeholders; whether the laws of the country have been fo!loi.ved; the issues of disclosure, transparency and fairness (It is alleged that the environmental impact assessment has been done by the same company) and the issue of handing over the land in the same condition as it is at the moment when the mining operations are over.

It is gratifying that the interests of the Kwale people have been taken up by the council of imams in Mombasa, the Muslims for Human Rights (ML1HURI) and the people themselves. In the old days there would not have been discussion. The state would have handed over the land, perhaps for peanuts in the name of development. The mining company must now disclose all the information that will help the people to decide, without intimidation, whether or not they want to deal with the company. It is of course intimidating for the people if the company enlists the cooperation of the

23 government and members of parliament as representatives of the Kwale people. In these matters the people themselves have a voice. It Is high time that this paternalism by governments and foreign companies, when it comes to development, comes to an end. The people of Kwale have a voice in this matter. The constitution protects their private property, and their constitutional rights must be respected.

-vementow in the developed countries and among the international human rights demands that multinational companies account for those actions that result an rights violations of the people of the countries they operate in. Their activities

TL 64 are monitored by NGOS based in their own countries. what has been called global civil society has started flexing its muscles. The nexus between national leadership and foreign interests in matters of corruptIon and unethical behaviour will now receive more focus than ever before.

65 A. I

hLI 66 C. Commentary on Ethnic Divisions in Kenya/Sta'te Sponsored Violence Govt's Subtle Role in the Fighting MAINA KIAI

The level of violence, confusion and chaos that marked the FORD Kenya elections was embarrassing. It is also ironical that the party most associated with democracy and human rights should display the behaviour Kenyans have witnessed in the past few months.

The Kijana Wamaiwa and Raila Odinga factions must shoulder much of the blame for this confusion and violence. The latest episode where they conducted separate elections, and submitted separate returns to the Register-General, only completes the sad comedy that politics in Kenya has become,

However., the dual elections also epitomize the fact that, apart from the name, thse are two different parties entirely. They may not be different in terms of lack of philosophy, but they are certainly different in their leadership and membership. The reasons for the recent circus in Thika, and the preceding and subsequent events, are also clear; The stakes for leadership have been driven so high that there cannot be a loser. Both sides must win, come hell or high water.

In Wamalwas case, he has been the leader of the opposition in Parliament and his name has been touted as the single opposition presidential candidate to stand against President Mol. He passed the message that this is the turn of the Luyia in general and the Bukusu in particular. He has come as close as one can to the presidency from the Opposition; indeed, he can almost smell the roses in State House. He simply cannot afford to lose his perch now after holding on it for the past two and half years, and just when the race is about to be officially flagged off.

As for Raila, this current quest represents a high-water mark on the long road to leadership that he embarked on with hEs first detention without trial in 1982. Since then, he has not wavered on his dream of one day leading Kenya. In addition, to increase his clout, he has added the ethnic dimension in his drive for power. It is time, so he says, for a Luo to lead the country, and he is the Luo to do so, especially since his father, the leader of the Luos, was not able to lead Kenya. 10 It is easy to heap all the blame on both Wamalwa and Raila for their non-comprising positions with regard to FORD Kenya and leadership in Kenya, and its attendant kc violence and tension. But they areonly half the equation, and possibly the lesser half. The bigger issues in the equation are first, the fact that Attorney General Amos Wako's dilly-dallying on the registration of new political parties has converted Kenya into a neo-one party state, and second, the uncontrolled and unlimited power that any esident in Kenya wields.

68 As Attorney General, Mr. Amos Wako is supposed to be the last authorIty on issues of law affectIng the State and Government. in addition, recognizing that he needs to be impartial because of the importance of his.job, the Constitution has given him security of tenure. This means he cannot be fired - not by KANU, the president, or parliament - from his lob without an elaborate and difficult procedure.

With these powers, the Attorney General is supposed to protect the people of Kenya and enhance the enjoyment of their own rights as stIpulated in the Constitution. These rights include the freedom of associatIon, including associating in the political party of one's choIce.

However, for some unknown reason, the Attorney General has decided that only those parties registered by 1992 are the only ones that exist - in law - in Kenya. This means that the personal and ethnic alliances that shaped the parties in 1992 have been cemented as a permanent feature of Kenya's politics.

Yet, people have changed their political views while some key members of the rrties have died. Others have been exposed for the unprincipled opportunists they are.Others have defected, thereby changing the face of the alliances. In addItion, some have been silenced after being outwitted. Few politicians would want to hang in the kind of limbo that Paul Muite, Kiraitu Murungi, Richard Leakey and other Safina supporters are hanging in. or Dr. Munyua Walyaki and his United People's Party for that matter. Because of this, they are forced to hang on in old parties. Only . if their needs prove larger than their egos do they defect to KANIJ and take lesser profiled posItions.

However, for those whose next step is the chairmanship, those who think that it is their turn to lead Kenya, the battle within the party becomes a battle until death. For where else can they go?

The suni result is that Mr. Wako is restricting choice and the freedom of association. He has, single-han dedly, reduced the space and the scope not only for upward mobIlity In all parties, but also in politIcs in Kenya. Unless one is prepared for a tough, brutal, and rio-holds-barred contest, one had better set their sights and ambitions very low. Consequently, Kenyans do not get the wide variety of choices and options that should have come with the repeal of Section 2A Rather, we are stuck with only those politicians with the stomach, resilIence, and resources to wage a no-holds-barred contest, and those with fewer resources (and perhaps more decency) are non-starters.

The Government's polIcy of not registering any more parties has had the effect of muzzling KANU members who may want to seek other opportunities. Since KANU has no room for criticism of its leadership let alone competitIon for the highest office, those in KANU who would like to leave for upward mobIlity or on principle cannot do so unless they can fight as hard as Wamalwa and Raila have fought.

Thus even though there are really two distinct parties in EORD Kenya, none of thA factors will leave. They will fight it out to the end, .

69 Why is the unlimited power of the President an issue? Because it can be used to punish anyone the President does not like in ways that are political, economic, and social in nature, Both President Kenyatta and Moi have superbly demonstrated this side of power, and there are many living witnesses to it.

Just ask l3ildad Kaggia Achieng Oneko, Ngugi wa Thiong'o and Martin Shikuku about Kenyatta's way of punishing. Alternatively, question Willy Mutunga, Koigi Wa Wamwere, Joseph Kamotho, Raila Odinga, or Mukaru Ng 4ang'a about President Moi's capacity for punishment.

Given the nastiness of the power struggles in FORD Kenya, where both factions feel aggrieved and betrayed, this power carries ominous implications. Of course, side by side with this power to punish is the power to reward and enrich that all Kenyans have witnessed. This is the power that creates sycophants and hecklers that both factions so richly employ in their struggles.

So even as we condemn, castigate and deplore the violence in FORD Kenya, and we demand more from these Young Turks" than they are exhibiting, let us reserve some of our indignation - perhaps most of it - for the Attorney General and his abdication of his constitutional obligations to promote the rights of every Kenyan. In addition, do not be deceived when he asserts that, The is looking into the rnatter" after all, he is the one who registered FORD Kenya and FORD Asili in quick succession.

Moreover, unless Amos Wako has a "pau1ian' miracle and changes his stripes, be prepared to see similar occurrences in FORD-Asili and In the Democratic Party.

Perhaps, too, the two titans in FORD-Kenya could stop their battle for a while and, with other like-minded Kenyans, train their awesome guns and tremendous energies to putting pressure on Amos Wako to live up to his constitutional and moral obligations and registration. He should not be allowed to get away with such obvious and devious manipulation and repression.

L h 70 Kenya's Succession Politics and the Threat of Renewed Violence MIJIUMA RUTEERE

If nothing can be written about Kenya today without the name of its President Daniel arap Moi weaving its way into the narrative, it is a testament to the legacy his twenty- three years in power has bequeathed Kenya.. For in those twenty-three years, President Moi has reduced a once proud country into an economic dunghil] foraged by his cronies and a political Babel in which the only common. language is himself. Even more frightening is his transformation of a peaceful multi-ethnic society into a snake pit where communities are manipulated to believe that their survival depends on the annihilation of others.

Kenya has not yet gone the way of Somalia, Rwanda or BurundI. It still has a largely functioning political infrastructure for controlling ethnic conflict. It might even sound alarmist to suggest the possibility of conflict. That might well be so and violence might not be But that is largely dependent on the decisions of the regime of President Moi in the next few months.

Kenya is set to go to erections in 2002 with President Moi constitutionally barred from running. Since 1992, when Kenya held its first multiparty elections, politically motivated ethnic violence' has become the byword for elections. With Mci set to leave the scene and the ruling cabal scared of the possibility of life without power, the entire future of Kenya might be up for the toss.

In 1992 and 1997, Mol used actual violence and the threat of violence to retain power. The orgy of violence left close to 2000 Kenyans dead and thousands displaced. No one was punished and the real truth remains buried in the official rhetoric of building peace'.

Since then, the map of violence and impunity has continued to grow. Close to 40% of the country is now under one form of violence or another. The northern region bordering Ethiopia, Somalia and Sudan has become bandit territory. With the government focused on containing the activities of opposition politicians and other political challengers, ulsecurity in these regions has reached the levels of low intensity warfare, pitting rival militias of local political kingpins of the ruling party. With the political instability in Ethiopia. Sudan and Somalia, easy accessibility of arms has transformed the conflict from a political shouting match to a deadly affair.

With the Kenyan economy growing at below zero, the economic c011apse has heightened the sense of despair. The uncertainty of whether President Moi will abId by the constitution and retire from politics or will seek to cling on has not helpe

71 situation. With Moi playing a wait-and-see' game over his exit, investments have continued to board up for the possible eventuality.

In the meantime, many of MoiTs close allies variously implicated in p]annhig violence and wanton corruption, are proposing a constitutional manipulation that allows Mol to continue playing a role in ICenyan politics. with Mol back in power, either as president or Prime Mintster in a new constitutional ariangement, they will be able to escape accountabUtty for human rights violations. Prosecution of the corrupt and those behind political violence in Kenya, it has been argued, will only lead to further instability and violence. Some supporters and critics of the Mol government have argued that it is time to close the chapter and move on. Time to turn the page, so to speak.

In all this however, the cries of justice cordiriue unanswered. Closing the chapter may be easy to speak of for those who have not been personally touched by the violence and corruption of the government. But for those who lost relatives and property, and the millions who have been economically disappeared, there can never be a closure. A. new chapter will mean addressing their loss and misery.

Kenya is now at the threshold of writing a new constitution. Closing the chapter of corruption and political violence means that the new constitution will not remember this part of Kenya's past. For those who died under police fire while fighting for a new cortstftution ) a closure without justice is an erasure of their memory nd their existences While a new constitution is a fresh beginning, it is not a forgetting of the past.

The negotIation of the future in Kenya still revolves around Mol. He still controls the machinery of political violence. He has used this machinery to play hostage-politics in the past. Indications are he is ready to use it again to allow himself to escape the reach of accountability. Allowing Mol and his allies to escape accountability for instigating 'ethnic violence' may buy the silence of his extremist supporters. But will It be justice?

2 I

IL 72 Lies are Tools for Repressive Regimes PMINA K1AI

One of the key tools of political propaganda in repressive societies is the maxim that repeating a falsehood or a lie often enough lends it credibility.

This was effectively used by Adolph Hitler in Nazi Germany when he engineered the public dehumanization of Jews, making them look like the scourge of the earth or blood-sucking fleas that ought to be exterminated. As a result of this propaganda, more than six million Jews were eliminated during World War II without much opposition from ordinary Germans.

Later, Mao Tse Tun.g used the same strategy of falsely blaming artists and intellectuals for all the problems in China, and hundreds of thousands were kiJled jaile4 or exiled during the "cultural revolution

Closer home in Rwanda, the key strategy of Hutu extremists before the genocide in 1994 was to constantly repeat that the Tutsi were inyeni (cockroaches) who planned to kill all Hutu

Consequently, the Hutu were urged to prepare them for the "final solution" to the TUtsi problem.

The result of the intense propaganda - which started as far back as 1990 and which was carried on the state-controlled radio, newspapers and leaflets - was the involvement of ordinary Hutu in the killing of up to 1,000 Thtsi.

In Kenya, there are two constant falsehoods one hears almost everyday on radio and reads In newspaper accounts of the Presidents speeches and rallies.

These are that tribalism and chaos were brought about by pluralism and rnultipartism, and secondly, that the Opposition is to blame for the deadly violence in Rift Valley and western Kenya.

Many people take these statements as simple falsehoods that should be ignored. However, the consistency of theIr reputation, and the fact that there is no chance to controvert them over the radio because of State control, gives reason to worry.

For the purposes of clarity, and also because of the short collective memory we all have, let us go through the reasons that make the two claims obvious lies that should be debunked as soon as possible.

First is the claim that pluralism brought about tribalism and all its attendant chaosA and instability. The assumption in this claim is that the one-party State did not enter tribalism or chaos, and is therefore preferable. 73 Thus, the claim further implies, if Keriyans want to reduce tribalism, then they ought to prefer getting to a situation as close as possible to the one-party State. This thinking is in fact the rationale behind the defection expeditions that KANU leaders have perfected.

The claim and the reasoning behind it are patently false. The reason for Africa's (and Kenya's) pathetic condition of war, poverty, corruption and disease is the one party state and the rise of dictatorships answerable to no one

A one party state (whether that party is the military, a political party, or a movement) depends on patronage and repression to survive. Its basic assumption is that the party has all the answers, and anyone with a different opinion is not only wrong, but also criminal.

And because one party states have no serious ideology or rationale to expect or hold loyalty, the only way to ensure loyalty is patronage in the form of jobs, contracts and distribution of the national cake.

Thus Somalia crumbled and decayed because dictator Siad Barre ignored everyone but himself, his family and his clan in the distribution of jobs and the spoils of office. Those who spoke out against this injustice and against the looting of the state were mercilessly crushed.

Efforts to organi7e non-violent ways of opposing the looting, corruption and theft were mercilessly crushed. The result: Armed struggle that Barre refused to accept on the basis that he was Somalia and if he went, so too would Somalia. He went, and so too did Somalia.

The situation was exactly the same in Liberia. Rwartda and Zaire. All these countries are basket cases.

In Kenya, tribalism increased when the Kenyatta regime decided to use the colonial tactics of divide-and-rule to ensure "perpetual rule over Kenya. The colonialists had branded Mzee Kenyatta and KANU tribalists interested only in destroying Kenya. They ultimately failed.

In 1966, Nlzee Kenyatta took up the same chant against Mr. Oginga Odinga and the Kenya Peoples' Union. He too used state control over the radio to paint a false image of Mr. Odinga as a tribalist and warmonger. He won the first battJe, but not the war..

Mzee Kenyatta perpetuated tribalism in his appointments and in land distribution. Kikuyus dominated all spheres of the state, and because of this obvious favouritism and above-the-Jaw syndrome, corruption rose.

With it came tension and signs of instability as avenues for peaceful and non-violent to address concerns were closed. Thus the planed coup of 1971.

after, a policy of spreading silence and fear arose. and attempts to communicate L 74 and organIze were dealt with roughly. Alternative readers like Mr. J.M. Kariuki were brutally assassinated. Cultural and educational ideas like Ngugi wa Thiong'o's peasant theatre were stopped and Ngugi detained. Religions that questioned the authority of the state such as Elijah Masinde's Dini ya Msarnbwa were banned.

The same thing continued with the succeeding regime but Kenyans were now more educated, more courageous, and more determined not to Jive in silence and fear as they had during President Kenyatta's time,

They also did not have Cold War considerations to tie them down. So they developed peaceful strategies of exposing the excesses of the Government and mobilizing Kenyans to resist repression. The result was more opposition and criticism.

The Government's response was typical of repressive one-party states; They hit hard. Oetentions without trial resumed, and more than 70 Kenyans were jailed after serious torture in the Mwakenya facade.

With those tough and repressive measures, instability and corruption rose and ension mounted. This is because those in the regime became insecure, as they knew that repression always breeds resistance, and so they began to pile up the money for a rainy day.

It was these negatives of tribalism, corruptIon and instability that led to pluralism as an alternative to KANU. It was clear that KANU was not prepared to fight the ills, and indeed was perpetuating them. So, it was thought, with some competition, this weakness would be addressed.

Has pluralism helped reduce these ills? Yes and no. One of the major results of pluralism has been the erriboldening of Kenyan society from the media to farmers. Thus some ills like corruption have received far more publicity than before, and while the political will to get to the root cause of corruption is still lacking, the Government has been forced to look like it wants to fight corruption.

For instance, there is no doubt that pluralism has emboldened dairy farmers so that they can stand up to the Government on the issue of the Kenya Co-operative Creameries board. They even forced the Government to accept their choice of leaders and they ousted board members thought to have caused the near-collapse of KCC.

In the one party era, the Government destroyed the Kenya Farmers Association ostensibly to reorganize it, but in reality to settle a personal political score, without any resistance from farmers.

Pluralism has also helped expose such scams as the Goldenberg scandal that would most certainly have been swept completely under the carpet. Today, the motions of court cases and arrests have to be undertaken and there is, at least, some Inconvenience A12 and humiliation that comes with It,

75 Similarly, pluralism has forced the Government to liquidate the Kenya National Assurance Company rather than infect taxpayer's funds into it, as it would have done six or so years ago. The challenge now is whether the main culprits of the message at KNAC will be taken to court and jailed,

On tribalism, the current regime has better success with its propaganda. it has adopted the same tactics as the Kenyatta and colonial regimes of painting all its opponents tribalists. In fact, it has been so successful in this that Opposition parties have fallen into the "regional distribution of seats" trap that KANU adopted, and bend over backwards to ensure they have a "national outlook."

Nevertheless, a cursory glance at KANU and the Government reveals the same tribalism that existed in the pre-multiparty days. Indeed., the situation has become so bad that some of KANUS non-KalenIin supporters have taken to threats of defection to acquire the glorious development promised during the 1992 elections and with every defection.

Recall the statements from Kamba and Luyia KANU MP5 about the lack of developient in their areas. Compare this with the excellent network of roads in the Rift Vallé' to the remotest and most unproductive area, the Eldoret International Airport. the Eldoret ammunition factory, the Eldoret Central Bank, the vast infrastructure in Eldoret and the allocation of over 50% of the Water Ministry budget to Baringo, Keiyo and Marakwet districts.

Instability in Kenya today is caused not by multipartism but the regime's own attitude towards dissent, transparency and accountability. The regime still thinks the way to deal with its real and perceived opponents is to show force. This may work initially, but.then it soon leads to alienation.

The way to reduce instability-is not to be dogmatic and unrelenting in the face of real criticIsm. It is to take the criticism and mould policies that are generally acceptable to the majority of Kenyans. It is to take work for compromise rather than alienation. It Is to accept that leadership changes are healthy and dynamic. It is to move to create a fair and just society where no n-ian is the decider of everythIng and is unchallengeable.

The second falsehood on the clashes is worse. Documented evidence by local and international groups indicates that the perpetrators of the violence were Government- supported.-I1 not, why have there never been prosecutions? Why is it that the majority of the dead and displaced were those deemed to be Oppostion supporters? Why are the known inciters still walking scot-free and unperturbed? Why has no evidence 2 been taken from the victims and from the church leaders resident in the areas? Why has there been no disarming of the warriors?

Our task is to ensure that even when the propaganda becomes relentless and constant, we have facts and truths by our side. We need to remember that these falsehoods are temporary. just like the colonial lies about Mzee Kenyatta and KANU failed, andd t'he falsehoods against Jaramogf Odinga are coming unstuck, so too will these ods that make a mockery of our collective intelligence as Kenyans. L 76 First among Unequals: The Question of Representation in. Kenya MUGAMRI KIAI AND WLLLY MUTUNGA

Recently, a smoky, acrimonious debate has been raging in Kenya over who should represent the Kenya Women's Political Caucus In the Constitutional Review Commission Some will recall that prior to thIs, there was an unsuccessful move by some figures in the establishment to substitute the Caucus with the less representative Maendeleo ya Wanawake, which is a member of the former. Now the fight seems to have shifted to within the Caucus with a group fronted by nominated MP Tabitha Seil claiming that none of the 5 representatives picked by the Caucus represent rural women.

Whatever the truth in this allegation, the simmerIng debate brings the isue of representation to the fore. How do we choose our representatives? Given our socio- political history one cannot help feeling that AdoJph Hitler would have been nominated by some Kenyans to head the united Nations had he come from the rIght tribe. Why, we have pro-deforestation Hon. Francis (How I Jove my acres In Kari-Kitale) Lotodo heading the Ministry of Environment and Natural Resources and Dr. Wilson (You can harvest forests and mine in them) Kipkore in charge of Kenya's forests.

The use of the tribe as the biggest denomInator in selecting our leaders continues to tenaciously dog Kenyans. Little wonder then that Sell wondered how there was no Kalenjin selected to represent the Rift Valley while they are the largest ethnic group there. Now a new factor has been added to this equation: the question of rural representation.

Whether the five women selected by the Women's Political Caucus represent rural women is anybody's guess. But who is a rural woman? Only one who was born, grew up and ekes a living there? Or does one qualify if they were born there and grew up in an urban centre? What of one who grew up in a rural area but was born in an urban centre? Or one who has property in a rural area but lives in an urban centre? Or one who lives in a rural area but works in an urban centre? Or one who works in a rural area but lives In an urban centre? Or one who grew up In an urban area and is now = married in a rural one? Or vice-versa? Is Eldoret, Nyeri or Enibu town urban or rural?

History has it that the representation of personal or class interests is normally hidden behind the name of "the people." Politicians talk of representing the people while some are clearly into power games, NGOs talk of grassroots work whIle some are in get-rich--quick schemes, the international community says it is keen on the basIc needs and good governance but some are only keen on the epIoitation of our hum and natural resources, religious organizations claim to intercede for the people

77 Creator but some are really confidence tricksters, and even the police have killed in the name of the people while there is evidence to show that they dd so to settle personal scores.

Hence, it is always important to look at who is claiming to represent whom. It is interesting that the debate on women's representation has, so far, not substantIally involved those who it is supposed to affect: the rural women, whoever these may be. The nominees are elItist and urban but so are those who are criticizing them and hence, cannot be called rural women. It is imperative that the rural folks (whoever these may be) also speak.

Mind you., the tact that the debate is centred around the urban elite may very well be due to the uncertainty of who the rural woman is. And this can only mean one thing: that the debate is superficial, a red herring to cause waves in previously calm waters. What was a non-issue has suddenly become the most burning issue of the moment.

And this is something that all Kenyans must guard against in the constitutional refrm process. When the Women's Political Caucus was formed, the idea was to bring all roflefl together, whatever their political beliefs, social or economic status. Women from all over the country were invited to apply to become commissioners, representing women at the Constitutional Review Commission. Geographical spread was a clear criterion for the choice of the winning candidates. However., there was no clear delineation of "rural" or "urban." Many of those now criticizing the Caucus' choices knew of all these criteria at thi§ stage. Indeed, they even nominated their own candidates for the positions. It is not clear if those they proposed as candidates fit into their definition of rural women. It is also not known why it is only now that they are crying wolf when they had thefull opportunity to raise the "rural/urban" issue (if it is one) beforehand.

it is a historical fact that a good constitution-making process struggles to harmonize and build a consensus between the different social classes in a nation. The rural community (however one defines it) comprises the rich, middle-class and poor. Are we saying then that all these classes were expected to be represented by one applicant? Or how many should have done this? And what is the difference between the urban and rural poor, for example, except the location where they parade their poverty?

It has been interesting that in Kenya neither the workers nor peasants, for instance, have been to any of the constitution-making forums, most of which were held at the five-star Safari Park Hotel, This does not, however, mean that they will not be heard at all. A common mistake the upper and middle-classes make is to assume that the lower one has no voice. It is time this stopped. Indeed, what is required is to ensure E that there are no impositions from "above" or the "middle" or the "below" in the constitution-making process We need agreement among all three groups. To get ill people need to have the space to operate freely without intimidation, silencing h ng taken over.. Rather than pretend to represent "the people" the critical concern for us should be on how to properly facilitate all the voices of Kenya (VOK!!!). For we all have voices. Our role now is to allow the space for all to speak up. The farmers from Mwea, for example, know what slavery and exploitation are. They also know what the best price of rice is. All they need is the avenue to speak. And we recently saw what happens if they are not heard. It shows how critical our collective responsibility to ensure that all are heard is.

A definitive interpretation to the question of what constitutes "the people's representatives" is needed to avoid the confusion being witnessed now. There is no blueprint to assess who is the people's representative. One does not qualify to represent people simply because they come from a certain area or locality. That is why criteria are established to know who the most qualified is and usher them to represent us. The Women's Political Caucus had a crIteria and this is how they nominated their choices for representation at the Commission. Those with a problem with these choices should not now create and invoke the name of the rural folks to torpedo the Caucus' initiative. Rather, they should be looking at ways of ensuring that the voice Pf all women is heard.

This is the only way that we can get proper representation. It is also the only way to build constructive consensus in Kenya. And It is the only way to create a constitutional system that is first among equals.

7 A The Ethnic Dilemma in Kenya MUGAMBI KIAI

When Kenyans witnessed PresIdent Daniel arap Moi and opposition leaders rIde together in one motorcade in honour of those killed in the August 7 bomb blast, there was an air of optImism. When they later heard the president observe that there is too much power vested in the presidency, it seemed too good to be true. And it was. The political scene has juickly returned to its depressing p re-bomb shape. A good sign of this was the recent "enthronement" of Hon. Kalonzo Musyoka as the king of the Akamba.

This is not about a personal dislike for lion. Musyoka. it is about the ethnic contagion that doggedly lingers in our politics, strangling every progressive attempt to re-direct this nation forwards. We are in 1998 and not 1898, which means the king cultire passed its sell by date eons ago In the king culture, one cannot contradict the king without it being taken as a personal challenge to his authority, however honest and genuine the opposing view is. True to form, the high priest at Hon. Musyoka's enthronement, Mr. Mulu Mutisya, warned that teachers who are threatening to go on strike for their salary increments are doing so to frustrate Hon. Kalonzo's reasonable ambitions of being the next president of Kenya

Apart from being both baseless and insensitive, Mr. Mutisya's sentiments represent the popular practice of the ruling elite to counter any opposition by waving the ethnic flag whenever under fire. With regard to teachers, this was a clear attempt to divIde them at ethnic level, in politics, this is regularly done. What It Invariably results in is to further fuel the fire rather than extinguish it. For teachers, for example, were these attempts to polarize them on ethnic lines successful, they would lose out and their grievances would not be addressed. The result would be the further deterioration of the already poor public education services currently on offer because miserable teachers can hardly be expected to deliver adequate services. On a larger scale, ethnicity can be cited as one of the main threats to Kenya's fledgling democracy because ethnicity has been used by the political elite - both in government and in the opposition - to seek favour from their local communities and crucify proper plural democracy.

And this is not the only case that can be made against ethnicity in our political system. it was through ethnicity that the British sustained colonialism by the system of divide and rule. it is through ethnicity that progressive ideas in post-independent Kenya have been countered or marginalized. It was through the cloak of ethnicity that people were set against each other in the ugly orgy of politically instigated violence. And it is through ethnicity that politically bankrupt elite have been able to retain power in enya despite their pillage of the economy.

80 On the other hand, Kenya's rare great moments have come whenever ethnicity is ignored. For example, Independence was achIeved because, despite considerable attempts to attract them, the founding fathers resisted the ethnic magnet. And widely lauded courageous rescue operations by Kerlyans in the wake of the August 7 bomb blast were devoid of ethnicity.

So why does ethnicity survive? Why Is it the ruling idea in our midst? Why wou'd it bring together four prominent Gikuyu politicians of different political persuasions? Why would it be used to enter into "co-operation" between rival political parties? Are we really Maasai. Luyia Taita or Somali first and then kenyais second? Why do we tenaciously cling onto the very identities that have been the cause of so much pain among us?

These are questions that Kenyans themselves will all have to answer- We should not expect any answers from the political elite who clearly have the most to gain by maintaining ethnic polarity. By cultivating an ethnic base, the politician is able to secure a bargaining chip that s/he can use to seek power, favour and privilege.; Yet when the final audit is done, the communities that loyally trace their leaders' footsteps come up very short. For exampJe. the Kalenjin community has been widely accused of 'eating" under President Moi. 't why Is it casier to count the individual Kafenjins who have benefited and impossible to see how the community has collectively done so? Is it not a fact that Kalenlin peasants - and they are the majority in that community - are as hard hit as those in Kasipul Kabondo by the harsh economic times?

And this is the tragedy of the situation. That the Gikuyu blindly followed Kenyatta, the KalentTh, Mol and so on. Who will be next? Will there ever be an end to this ethnic chauvinism so that Kenyans and not Gikuyu, Kalenjin, Luo, Luyia and so on - find someone they can all follow? And is it not time that we stopped this habit of fuatariug nyayo (following) and began to tangutic (lead)?

I I

21 A The State Has Declared War on Kenyans WILLY MUTUNGA

On the issue of security and state declared war on the people of Kenya, we are reminded of a poem by Pastor Niemoller, an activist in the church resistance to the Nazis and Fascism:

First they caine for the Jews and I did not speak out because I was not a Jew Then they came for the communists and I did not speak out - because I was not a coriununist Then they came Lot the Trade unionists and I did not speak out - because I was not a Trade Unionist. Then they came for me - and there was no one left to speak out for me.

Are Kenyans becoming accomplices and collaborators of the genocide that has taken place and continues to take place in the country? Are we cowardly saying that the Kik.uyus are dying in Laikipia and Mob; that the Luos and the Digos died in Likoni and Kwale; that the Kisiis and Luyias died in the Rift Valley; that the Bukusus were victims in the Mount Elgon clashes; that the Kisit's and the Maasais are dying in Gucha and Transmara; that the Kambas resisted the burning of their houses in MariakanI Mombasa. And who is analyzing the natIonalities of those who have died in dashes in Korogocho? As Kenyans we cannot continue going about our busIness oblivious of the deaths in our mIdst. Who is next? Shall we wait until it is our turn?

Barely one month after KANU rigged itself into power, it has ignited multi-pronged genocidal attacks in Laikipia and Njoro. The death toll is rising by the day and so are acts of arson and the fleeing of members of the Kikuyu nationality from their legally owned land. Security personnel deployed to these areas,, upon interview, have stated that they have no orders to pursue the aggressors. Once more, the state is employing ethnic based violence as a political tool. In both Laikipia and Njoro, about 100 people are now dead. These recent acts.of genocide bring to mInd the earlier state perpetrated violence in Mob, Burnt forest Western Province, Nyanza, EnoosupukIa, Olenguruone, Transmara, Gucha, Likoni. They also bring to mind the perpetual banditry in Coast. Eastern and North Eastern Provinces, which the state has done nothing to curb. Let us say loudly that the state is spoilIng for civil war.

NCEC analysts believe there are many reasons for the freshly engineered human gedy. Some of these are:

revenge against the most populous community for not voting for KANU and

82 a warning that other communities that did not vote for KANUare on the queue for violence;

• Intention by the Moi regime to catalyze civil war in the country so as to generate a pretext to declare emergency rule so that Mol can rule without parliament and. despite Jack of legitimacy;

• To create condItions under which Kibaki's electoral challenge to MoPs "win" can be withdrawn or thrown out by the courts. MoE does not want the court action to reveal the illegalities that plagued the elections;

• To postpone constitutional reform because the government may not itself want the constitutIonal commission to work. Alternatively, the government may wish to negotiate acceptance of the commission route to constitution making after stopping the violence;

• To take away Kenyans' attention to the succession struggle, thereby allowing the hawks to win the vice-presidency;

• To test the efficacy of the alleged 100,000 strong private army of Nicholas 8iwott led Keiyo-Tugen elite axis;

• To ensure challenge to the government, which came through rigged elections by the NCEC and the people of Kenya is stalled or avoided altogether;

• Since government is unable to deal with the real problems, especially economic and infrastructural, there is intention to employ diversionary tactics;.

• To use the clashes to defeat either of the succession groups by means of the government controlled media, even if such group is not responsible of them;

Whatever the reasons for these clashes, Kenyans must now totally refuse to be slaughtered like sheep. The government must now know that not a single Kenyan will henceforth be killed without the government being answerable.

NCEC advIses all Kenyans that each Kenyan has the lawful right of self-defence under the constitution and the penal code. We call upon the government to supply arms to those people who are being attacked so that they are no longer vulnerable to the attackers who have superior weapons. NCEC, however, states that no Kenyan should attack another Kenyan except in self-defence. We must avoid civil strife and civil war.

NCEC advises all Kenyans to form village self-defence groups whose primary function will be to defend each village against aggression. Since we do not know which part of the country will be attacked next, this measure has now become urgent and imperative.

NCEC stated that Moi and KANU did not win the 1997 elections The foreign observers have recently confirmed this. KANU, therefore, conducted a civilian coup d'etat and i in power illegitimately. The recent state facilitated an orgy of violence and has

93 - again convinced Kenyans that the Moi regime is incapable of governing Kenya. NCEC calls upon the Moi government to resign with immediate effect. All parllamentary parties, representatives of the religious sector, Saba Saba AsIIL NCEC and other democratic forces must urgently negotiate for the formation of a government of national salvation which will restore peace and security, undertake comprehensive constitutional reform, and rehabilitate tFieecononiy, especially to alleviate existing poverty and to organize free and fair elections.

K'enyans must not allow their country to be disintegrated by greedy and irresponsible politicians. No dictatorship has ever triumphed against a determined people. NCEC calls upon all pro-democratic forces to unite for the sake of the salvation of our suffering people.

NCEC wIshes to advise Kenyans that some elite are exploiting ethnic differences to make us fight. We must resist such machinations. We must remain one people in our country.

NCEC calls upon Kenyans not to go to work on the 2nd of February 1 998 (MbiJi mili) to mourn those who have been mercilessly killed in Laikipia, Njoro and other places since October 1991 in the so-called ethnic clashes. Let us stay at home to mourn so that we can send a niessage to the Moi governmertt that the lives of Kenyarts are precioLls.

NCEC caLLs upon Kenyans to attend the mass funeral of the 01-Moran massacres on FrIday 30th January 1 998 at Sipili, Ngarua DIvlsion of Laikipia District. The service will start at 10.30 a.m.

The anger of Kenyans has been ignited. We refuse to be killed like sheep because we want freedom and democracy while Mol and KANU consign us to one party dictatorship and slavery.

Katiba Mpya Maisha Mpya!

Mabadiliki Ni Leo Sic Kesho!

k66,184 D. Opposition Politics/ Alternative Lea.dersfiip Did We Witness the Birth of a New Political Movement on Sabo Saba 1001? MUGAM&I KIAI AND WILLY MUTUNGA

The multi-party era was prophesied and blessed by the Reverend Dr. Timothy Njoya on New Year's Day in 1990. Saba Saba 1990 sav the birth of mass action to force the delayed birth of the multi-party movement. After deaths, detentions, imprisonment, rape, torture, intimidation and other acts of oppression, the Moi-KANU regime decreed the repeal of section 2A of the constitution heralding the birth of multi-party politics. President Mol had In 1990 prophesied.that Kenya would enjoy multi-party politics after one hundred years. Thanks to the people's power, the century was cut down to two years!

Matiba and Rubia, it will be remembered, applied for a permit under the Public Order Act to hold a meeting on July 7, 1990, Both Matiba and Rubia were arrested and detained. Three lawyers were also detained, namely. Dr. John Khaminwa, Gitobu Imanyara and Mohammed Ibrahirn. Also detained was Raila Odinga. Although the lawyers were released within a month, Matiba. Rubia and Raila were not released until 1991, by then all of them very sick men.

For Raila, Saba Saba 2001 was significant. He was a member of a government that ordered that his former comrades-in-arms in the political parties and civil society be brutalized and locked up. We would be intrigued to find out why the views of Gitobu and Anyona are on the criminal events on Saba Saba 20011

What happened on Saba Saba 2001 was criminal and a shame to government's claims that It practices some form of democracy. The edItorial of the Sunday Nation (July 8, 2001) summed up the anger of every peace-loving Kenyan. Why should the government pretend it cares about the security of the citizen? Who does the government deceive by declaring that it will support a peaceful and secure constitution-making process? Who does the government deceive by paying up service to the rights of the citizens to freely assemble, associate and enjoy the freedoms of movement, speech and press? Is there truth in the argument that the international community is hoodwinking Kenyans to believe it wants Moi to retire when in fact it is strengthening his authoritarian hands? Is the Washington-Nairobi-South Sudan connection Mci's lease on a new term?

Why are the violations on Saba Saba 2001 not the concern of the IMP, the World Bank, the WTO and GATT? In 1991 the issues of graft and vIolations of human rights (including the right to form political parties) were sufficient to force the donors to ipose conditions on aid to Kenya. In 2001 corruption is worse than it was in 199 I. asic human rights, the right to security and the right not to be poor have been

96 constantly violated by the Kenyan state. Why are the donors talking about economic reforms without asking themselves who will carry out such reforms? Why are donors investing in constitutional reform and civic education If they are not ready to state in no uncertain terms that security and the citizenst freedoms are not negotiable? We are of the view that Stephen Brown in his article Authoritarian Leaders and Multiparty. Elections in Africa: How Does Daniel arap Mat Stay in Power? is right when he states that In the case of Kenya, donOrs [have] proved particularly risk-averse in their prioritising of objectives"

Those who preach respect for the rule of law and human rights should look very seriously at one set of facts in Kenya today: those who comply with the law (for example by giving notice to the police stations about the Saba Saba rally) are arrested and tortured, while those who break the law (no KANU member of parliament would ever bother to give such a notice) are given the protection they need Such discrimination can only be condoned by hypocrites, racists1 fascists and their fellow travellers.

Yet Saba Saba 2001 was not a Lost cause. A new political movement was born by the baptIsm of teargas, torture, arrests and intimidation. Look at the lineup and behold the alliance of A4uungano wa Mageuzi, Muungano wa Wanuvijiji, National Youth Movement, SDP, Safina, People's Party of Kenya, Saba Saba Asili, Mungiki, the NCEC (and the civil organisatioris who see in the NCEC their political expression) and the Green Belt Movement. Matfba still supports the Saba Saba Movement.

Mass movement is coming back. There is a new cycle of resistance and it is led by a breed of new leadership from political parties and organisations in the civil society. it is multi-racial and multi-ethnic, multi-religious, multi-generational and comprises both genders. These are leaders with a track record of clean politics and politics of issues. They have a plan of action for this country and they have an ideology that is different from the first and second forces; the first force being the KANU/NDP collaboration while the second force is the Kibaki-Wamalwa-Ngilu-Nyachae axis. The clear political lines of the Nyayo and reform movements are becoming clearer and clearer. And such lines are the first signs of democracy in Kenya.

We have mentioned the organizations that stood up to be counted on Saba Saba 2001. The individuals involved are also important. These individuals are politicians, civil society leaders, youth leaders, women leaders, leaders from the private sector and leaders of various movements. What is particularly important is the inclusion of Kenyans abroad, who are part of this alternative leadership. What the Kenyans abroad provide in leadership is something the various dream teams set up by the governmeht can only simply dream about. That leadership constitutes a great objective think tank on what will make Kenya a great nation in Africa. .

Professor Wangari Maathai was simply planting a tree in honour of those who d during the earlier Saba Sabas. At least we know the names of fourteen of the mar of Saba Saba 1997; Andrew Ogada Ominde, John Wanyoike, Daniel MugendAd 97 James Mwangi Charagu, Emmanuel Mmbeshi, Peter Mathenge, Peter Njau Wanaina, Paul Nforoge Macharia, David Gatem! Kibari, Timothy Wanaina, David Kahuni Mutugi and Paul Njoroge Macharia. To all the fourteen and other martyrs ofSaba Saba1 and those who have been maimed in the Saba Saba struggles, the message Professor Maathai was communicating (besides having proven beyond reasonable doubt that she can be trusted to take care of our forests and natural resources) was that Kenyans will always remember the heroic deeds of their compatriots.

It is at Uhuru Park that the youth put up a billboard to show a!! Kenyans where the remains of the Kimathi Waciuri and other Kenyan heroes should be buried. Let Kenyans not forget that Kimathi Waciuri and others still cry for Justice from their graves in captivity. In stopping Kenyans from honouring their heroes through peaceful non- violent action, the Moi-KANLI regime and its supporters show clearly that our struggle for land, freedom and justice continues to be a just one. And this is a struggle that must be continued.

Orengo continues to report to courts all over the country where he faces vaious charges and where trials never seem to take off. Meanwhile, these trIals and tribulations are expensive and intimidating. Remember the Nyamoras? A single trial in Monibasa that involved constant travelling in part hurt the fortunes of their publication the Society.

Remember Gatabaki and his many criminal cases? Remember the arrests and trials after the November 16 Kamukunji? The activists were charged in their home areas so that their supporters in Nairobi would not attend their trials. These tactics of old are being repeated. These tactics show the reality of the one party dictatorship under plural politics. The resistance reflected by the Saba Saba 2001 is a warning that the fruits of our decade of struggle are being clawed back.

We do not think that the new political movement weakens the oppositions unity. Such a unity does not exist, but it can exist. It, however, cannot be brought about by the old politics and the old backward political ideas. The mission of thedissidents" is to unite the reform movement, a refbrm movement that rejects Moiism with or without Moi. Itis on this basis that the reform movement will conduct a dialogue of unity with the Kibaki-Ngilu-Wamalwa-Nyachae axis. Nobody, however, should doubt that the new political movement can, and Indeed does, stand alone. Nobody should doubt that the new political movement will contest for political power on the basis of its alternative ideology, leadership, and its survival programme for Kenya in a global economy. The blue prints are ready and the political landscape in Kenya will never be the same again.

Let us give the new polItIcal movement a chance. Let us heed the old native wisdom that teaches us that an arrested" lioness/lion is not a monkey! In Search Of Alternative Leadership in Kenya: The Case of Ugunjà MUGAMBI KIAI AND WILLY MUTUNGA

"Ok wadwar pesa remo." (We do not want blood money) - Supporters of James Orengo, April 24, 1999

Roll over Mike T'son, Evander Holyfield et al. Enter Raila Odinga and James Orengo. Their promised top-billing slug-fest in Uguna promised the intense, high-voltage drama usually associated with the heavyweight tangos between prize-f ighte rs punches-below-the-belt head-butting and earbiting included.

And the similarity did not end here: running the show behind the scenes was an overpowering, avuncular but distinctly similar presence to Don King, that reled but ever-present white-haired promoter of boxing.

Of course, we had the usual pre-fight publicity associated with heavyweight bouts. There was the customary exchange of words between the pugilists: Orengo accused Raila of being a stooge of the Moi-KANU Regime and Raila's riposte was that while Orengo is very prominent in the fight to save Karura Forest, he is unaware that public land has been grabbed in Ugenya. There was also Orengo's accusation that a Sinister plot was afoot to assassinate him. Then, there was his public whipping and incarceration by the provincial administration in Nyanza. Both competitors claimed the support of the mwanancht In Ugenya. Some observers predicted a blood bath others rubbed their hands with glee, excited by the impending action. All watched with bated breath. Who needs M-Net?

What transpired is now history. it is impossible for those who had hedged their bets either, way to collect anything because the provincial prefects in Nyanza contrived to detain Orengo and his entourage away from Uguna and allow Raila to proceed with his fund-raising rally; a reprehensible move which, in the eyes of many, more than vindicated Orengo's claim that Raila is a stooge for the Moi-KANU Regime. In all fairness, the intervention of the administration should have been to halt both congresses. who, a decade ago, would have imagined this happening? It is not lost on anyone how much water has passed under the bridge since those heady days when Kenya bubbled with the struggle for the second liberation. These were the times when Raila and Orerigo shared a commonality far beyond their ethnic identities, when they were the subjects of frequent state persecution and were Identified with the former left. These were also the times when both were branded "Young Turks", taking pride place among an illustrious bunch of new-generation Kenyan leaders who thre

89 to breathe a wind of change to a resisting establishment. They who dared shake the tree of freedom so that Kenyans could taste nnitundi yci Uhuru. They had so much promise. They promised alternative leadership. No compromise, no let-up. Yet ten years later...

We see a fundamental breach. That one can abet a system that hounds, harasses and Incarcerates his opponents. That one can conspire with the same dictatorial and oppressive leadership to violate the rights of his opponents. That one can openly and unashamedly cavort with his former persecutor - and still persecutor of many - in attempting to build a personality cult.

Is it a wonder therefore that Kenyans are so disillusioned with the opposItion? What alternative leadership is this that can be compromised to harass other oppositionists, and assist in their persecution? What alternative leadership is this that displays a patent disregard for !ustfce and fair play? What alternative leadership is this that borrows the methods of the current politIcal dynasty and wants to pepetuate it? What alternative leadership is this that fails to exhibit any ideological and policaI difference with the ruling MoiKANLl regime? Why would an alternative leader be interested in sharing the spoIls with a regime that, in the name of hcrambee and development, robs Onyango to pay Ochieng? Is this an alternatIve leader at all?

Some may have pooh poohed the idea that there are parallels between this contest and that between the late Tom Mboya and Jaramogi Oginga Odinga, That the Mboya- Odinga rift was ideological and not personal. But, was this again, not also a turf war between the two? And do Raila and Orengo not espouse different political ideologies that are also struggling to dominate? And do we forget that the Mboya-Odinga match had Its own Don King?

Until recent1y, Raila and Orengo shared the vision of Odinga and were closer to Odingaisrn rather than Mboyaism. 1-lowever, Raila has clearly decamped and joined what was always Mboyas ideological camp: the right.

Worse, his co-operation with the Moi-KANU regime has added a new and divisive ingredient to the ethnic stew in Kenya: the Baritu-Nilote identity as a denominator to further split Kenyans.

What we are contending is that although their divergent personalities and personal egos played a great part in the squaring off between Raila and Ore ngo, there is also a fundamental question of political ideology that emerged. Political ideology is not lust about whether one agrees with capitalism or soclalism-Ir can also be about whether In one espouses national or local politics. That is it can be about whether one will engage in ethnic nationalism or Kenyan nationhood And this is the big ideological question of our time: for the MO1-KANU regime is clearly playing at whipping up = ethnic sensibilities and promoting ethnic balkanfzation. This is why, for example, we nessed the depressing game of musical chairs that was recently played with the _jresidency; which naturally resulted in ethnic demagogues talking about their hi 90 favourite son (strangely, no community seems to have a favourite daughter) contending for presidency.

Ultimately, the way Kenya goes is up to Kenyans. The decision on whether we are Kalenjinfr Endorois, Asians, Africans or Somalis first and Kenyans second or vice- versa can only be made by the common mwananchL The decision on whether we are fuJI-time or part-time Kenyans rest squarely in our hands.

And this is what gives us hope. That despite all adversity our national identity as Kenyans has so far prevailed. We are here today because of this: that there are still pockets wfthin the polItical establishment who refuse to be cowed or compromised, that the religious and secular civil society is still vibrant, that there constantly are women's and youth groups offering change and that the business community has begun to interrogate the systcm.

This is the quest for alternative political leadership Calls are now heard for a new movement to re-invigorate the struggle for freedom, equality and social justie. It is now clear to many that the politIcal parties are inadequate as vehicles to deIi'er this. No longer can we remain aloof from politics in the belief that politics is a dirty game. For politics is about you and me and us and to condemn it as dIrty is to condemn ourselves so.

And such a conclusion will simply not do. Our capacity to harmonise our different ethnicities, classes, races, ages, sexes, religions and other differences is the challenge for the alternative leadership.

It is no longer enough to criticize the colonial, Kenyatta or Moi regImes for all the ills that affect us. Rather, it is a matter of providing answers to the myriad questions that these different hegemonies have left unresolved (and only further exacerbated) by developing concrete programmes or blueprints of action as well as popularizing and effecting them. Moreover, an alternative political leadership must convince Kenyans that it can deliver. So far, none has done so

It is about thinking big and acting small because as the wise say, Cheche mmaja huanza inoto nthugcrni (A spark can ignite a whole forest). Those looking for an example can refer to the National Convention Executive Council (NCEC), which resolved to initiate a peaceful campaign for constitutional change in Kenya and stuck to the task. From the initial resistance to the idea (remember when we were told that Kenya did not need a new constitution because it was not at war) to the half-hearted concessions (a team of foreign constitutional experts will be brought to collate Kenyans' views on the constitution) to the outright rejection (saba sab, tiane vane) to the stealing of the process (the Inter-Parties Parliamentary Group - IPPG package) to the current impasse on nominations to the constitutional commission, there has been, due to this resolve, a change of attitude - however unsatisfactory -on the right of Kenyans' to determine their own destiny.

91 The NCEC is now forming a movement to incorporate all Kenyan indMduals and groups who are interested in countering dictatorship and introducing real and meaningful democracy. This movement aims to mobilize democratic-minded K'enyans in fighting tribalism and promoting nationhood, eliminating corruption and insecurity, rehabilitating social infrastructure and restoring the dignity and integrity of the citizen, including the respect of the full gamut of Kenyans' human rights.

It will resist the creation of ethnic and personality-based cults and, instead, give a wholesome treatment to politics; integrating not just tribes but the art and science - such as language, historj, sociology, geography, biology, physics, chem1stry, mathematics and so on - of politics.

This is alternative leadership. Without it Keyans must brace themselves for Moiism in the post-Mof era.

i66L Wonted: A New Vision for Kenya, a Kenya with a Vision MUGAMBI KIAI AND WILLY MUTUNGA

When a (wo)man has cast a longing eye on them (high offies), a rottenness begins in his(h€r) conduct. Thorrtas Jefferson

The political drums have picked up a campaign rhythm in Kenya lately, with most of the major political parties launching their presidential campaign bids.

The rush began with the Democratic Party's national official launch of its presidential campaign for 2002. KANU was soon to follow, with some party stalwarts saying that they were launching a bid for President Moi's candidature come 2002. The kational Development Party (NDP or KANU C) has not been far bhind in its rhetoric while the Social Democratic Party recently advertised for applicatIons for those interested in being its presidential candidate.

Some who harbour presidential ambitions are yet to announce their bids. The likes of Simeon Nyachae, Charity Ngflu, Paul Muite, James Orengo. Cyrus lirongo, Katama Mkangi, George Anyona and wangari Maathai. An interesting contention has been that Richard Leakey may also announce his candidature given that President Moi has dearly said that no African can succeed him and after all, in this racial world, at least the purse strings of the foreign masters would loosen to their fellow mzungu.

The reason for this frenzy should be obvious: in Kenya the presidency is a winner- take-all job Indeed, it is a winner-cat-all, winner-beat-all, winner-say-al], winner- is-aIr kind of position. It is live-and-do-not-let-live kind of position.

What is galling is that the fact that today's politicians want to compete with these kind of stakes is disastrous to the nation. It provides no hope, just a perpetuation of domination, corruption and neo-colonialism. It lacks vision and invites recolonisation.

Yet if there ever was a time that Kenya needed a vision for the future, it is now. The country is literally in darkness as the frequent powcr.outages regularly exemplify. Kenya has a limping economy, explosive unemployment, rIsing insecurity and intolerance are on the rIse, as are ethnic chauvinism and sectarianism. Not to forget foreign domination as seen in the relationship bctween Kenya and the Bretton Woods institutions.

In short, it is.as if Kenya is at war. But unlike other nations where the tendency is to coalesce, uniting in the national interest, in such situations to face such a myriad enemies, Kenyan politicians seem inclIned to Continue the fragmentation of this ii

93 Clearly, the national interest is not a concept that comes easy to the political establishment.

As such, they not only offer no solutions but also double the problems. Notwithsnding that the electoral playing field is far from level, these Individuals and parties are prepared to fight it out notwithstanding.

Indeed, why has no one heard these politicians call for a better electoral playing field? This could be through, for example, the implementation of the Inter-Parties Parliamentary Group (IPPG) deaL the improvement of the same, a review of the electoral system and reconstitution of the Electoral Commission, a redraft of the seriously gerrymandered constituency boundaries, the guaranteeing of the independence of the Kenya Broadcasting Corporation (KBC), the de-linking of the ciVil service from. partisan politièal dIrection.

A recent telephone opinion poll done on a talk show on Nation TV indicated that 80 percent of the callers were of the opinion that the current parliament has not leen effective in addressing Kenya's governance problems. And-now the politicianare saying that they want to go back to the same house, in the same manner and spend even more taxpayers' money! It was interesting to learn that the ordinary Member of Parliament is today earning about KSh. 200, 000. What does the President earn?

When it comes to the presidency, there is one sure thing: the amount of social, political and economic power and influence vested and exercised by that office is colossal. No wonder there is no interest whatsoever in the political circles in a discussion on an interim constitutional arrangement where a government of national interest would be established, incorporating not only the political interest but also those outside it.

In short, all they are interested in is inheriting or retaining the machInery of coercion, violence and self-perpetuation that is today operated by the Moi-KANU machinery. Like scavengers fighting over carrion, they are squabbling over who should occupy the hiD presiding over the valley of dry bones.

And it is time that they were shown the door. Now Is the time for the alternative leadership in Kenya to emerge and begin not only expounding Its vision for Kenya but also implementing the same. It is time to go beyond criticism of the establishment. It is time to act.

The alternative leadership is to be found in all the othersectors of Kenya: in religious organisations, trade unions, business organisations, the youth and so on. Their articulation of their visions for Kenya must also include concrete actions in support. This is the only way they can be credible.

The alternative is the contInuation of the political hegemony currently in place. It is a continuation of Molism where even with a different face, the poverty, despondency Ld degeneration continues, it is the continuation of oppression.

94 Former American President Harry Truman once said that "It is amazing how much can be achieved if we do not care who takes the credit.w Sadly, Kenya's politicians are doing the exact opposite: they are trying to get into positions where they take all the credit.

As the Mol-KANU regime has learnt at its own expense, all the credit they have taken has had to be desperately sought from the World Bank and international Monetary Fund (IMF). Is this not a terribly myopic vision for the leadership of a nation to have running around foreign capitals with large entourages with an empty cup in hand?

Kenya must have a new leadership from outside the political sphere, with a vision for the nation. Kenya must become a nation with a vision.

95 A My Name Is Mheshimiwo MUGAMBI KIAI

Professor Kivutha Klbwana could have been a contender for the vacant vice-presIdency. How? He could have joined the ruling party, won the by-election for the Makueni Parliamentary seat and whIpped up sufficient ethnic pressure to suggest that he is the king of the Kamba. Then, someone would have suggested that with his immense capabilities and availability for the job, Kibwanas foray into politics was an act of divine intervention. How irresistible! Kibwana seems not to have apprecIated this when declined to vie for the Makueni Seat, denying himself a stab at being a heartbeat away from the presidency. Strange fellow: doesn't he have a stomach?

Then there is His Eminence Archbishop Ndingi Mwana a'NzekL In a recent interview, His Eminence stated that he was not inclined to accept any offer to be a comprorise presidential candidate because, in his words, In my position as a bishop I cannot ioin politics. What is it that I could do as a politician that I cannot do as a bishop?" Well, your Eminence. I am shocked that you could ask such a question. If you were a politician., you could, for example, acquire a sizeable piece of Karura Forest. Or you could get a security-free loan, the size of Kenya's national budget, from the National Bank of Kenya. Moreover, in answering this question, Archbishop Ndingi clearly did not ask himself what he could do as President of Kenya that Presidents Mci and Kenyatta did not.

Then there is Or. Willy Mutunga. He was asked by the Safina Party in 1995 to become their national chairman Previously, in 1994, he had rejected an offer by the Attorney General to be a member of the Task Force reviewing the Preservation of Public Security Act (has this task force ever given in a report?) because he thought that detention without trial was ripe for repeal, not review. I suggest to you that this one has no mouth.

Indeed. I further suggest that looking at the current political terrain in Kenya, these three surely cannot be Kenyans. They are aliens, probably Martians. Kenyans have mouths and stomachs and vote using them. They are like Noah Katana, Maalim Mohammed, Musalia Mudavadi, Simeon Nyachae, Charles Njonjo, George Saitoti, Nicholas Biwott and Kalonzo Musyoka who have all been suggested as applicants for the post of vice-presidency.

Yet Professor Kibwana, Archbishop Ndingi and Dr. Mutunga are all Kenyans too. Why then do they refuse to be blown in the direction of the political gale? It can only be because they realise that it is not only the Akamba, the Gikuyu, the Kalenjirt, the he Luo, the iuyia, the Kisli and so on who have problems. All Kenyans have , In fact, all Kenyaris have common problems Poverty, corruption, an almost public infrastructure as seen in education, health and roads, a restive and L. 96 highly discontented labour force, an even huger mass of unemployed, a bankIng sector - that is behaving like a bounced cheque, an unaccountable executive, a judiciary that has declared itself to be in the ICU and a parliament that votes with its stomach, Problems!

And these problems will not be solved by getting yourself called mhesh!rniwc. indeed, it can be convincingly argued that the growth of the mheshlm!wa culture has been one of the root causes of the problems Kenyans face today because once one is called ntheshiniiwa, they are never expected to be broke. They are, instead, supposed to behave like charitable organizations that continually pour money and other resources into their constituencies. And hence the perpetuation of patronage and corruption, twin evils that are needed to oil this I-have-lots-of-money machine.

When one closely examines the reasons Professor Kibwana, Archbishop Ndingi and Dr. Mutunga gave when declining to take political positions, one thread emerges. That it is wrong to imagine that Kenyans' problems will be solved by the current political establishment. ParlIament remains emasculated seven years since the relurn of multipartyIsm. First, there is the question of how one gets into parliament. This is largely done on tribal tickets, which means that brilliant individuals such as Professor Peter Anyang' Nyong'o are licked in elections because they are backed by the wrong party. Then, there is the question of whether elections are free and fair in Kenya. Ask Ms. Betty Tett this one and you will get a passionate no. if one overcomes these bottlenecks, there is the question of whether the speaker will allow for some critical questions to be asked in the house. The speaker has power to decide on the substance and procedure of debates in Parliament. In 1994, when Hon. Paul Muite wanted to ask about the funding of an airstrip on the President's personal farm in Kabarak, the speaker rejected this on grounds that it touched on issues of national security. Worse., Parliament has no enforcement machinery of its own and hence, it cannot act, by, for example1 prosecuting those fingered for nhisInanagement and misallocation of public funds in the numerous report of the Auditor General. Neither can it act on reports tabled by its own committees such as the Kiliku Report on the so-called land clashes or the report of the committee that investigated the murder of IM Kariuki, Then, there is the totally misguided thinking of a majority of the present members of parliament that their primary function is to blindly defend the government of the day. The recent defeat of the vote of no confidence is a perfect illustration of this. Also, looking at the blatant contempt that the government has shown in the August House on the Karura and other forest issues, one cannot fail to come to this conclusion. If it is accepted that Parliament in its present form and context is not a proper forum F to change the St it us quo, then one must question where change will come from. When one looks at the vice-presidential debate that Kenyans are riveted on, he or she notices that we are still captured by the Moses Syndrome" This is the thinking that dIctates that we expect someone to come and solve all our problems, like Moses biblically did for the Israelites from Egypt. Hence, local communities suggest their favourite so (No woman has been suggested for vice-presidency. Don't tribes have fav

97 daughters?) to ascend to power so that in Kenyan lingua, "We can also eat."

The dangers of this trend are clear; it has precipitated the current mess Kenya is in. To get out, it has been suggested that Kerlyans should turn inward instead of outward. The question should be, "What can I do to help my country?" and not "What can my country do to help me?" The late doyen of non-violence Mahatma Gandhi once said, "You must be a change you wish to see." I agree with him. Change will not fail from the sky like manna from heaven. we cannot expect our politicians to shun corruption when we are the ones who are also pulling Goldenberg-esque scams all over the country.

And this is where the role of civil and religious society is critical. These two sectors retain some form of moral authority. Indeed, facts collected last year by Mr. Wachira Mama, the Executive Director of the Centre for Governance and Democracy, on the confidence people have on key national inst1tutions show the following:

Religious Groups 53% 31% 15% 1 The Kenya Police 1% 4% 44% 51 The Judiciary 2% 16% 84% 19 MPs 1% 9% 75% 15 Electoral Commission 3% 13% 49% 35 President 0% 14% 60% 26 Local Councils 0% 5% 55% 63 Provincial AdmInistration 0% 7% 55% 38

It is clear from the above that political leadership in Kenya faces a crisis of confidence. To reform It, they themselves should set the example on the changes they desire. And this is the central message from Kibwana, Ndingi and Mutunga. Is it not ironical that. some of the people we distrust most are the same we expect to be in charge of our economy and national life? What checks and balances have we established to ensure that even if we had the biggest thief in power, they would not get away with the pillage of the economy?

And this is the present cliaIlenge to empwer the ordinary mwwianchi so that he or she will not only desire meaningful change but also be instrumental in achieving it * And given the present capture of our politicians by the magnet of raw political power, it would be naive to imagine that this quest will be led by the political establishment. is it not myopic to expect those whose hands need to be tied to prevent them from robbing the national till to lead the push for this? This is a clear conflict of interest.

Kenyans collective imagination, focus and energy in this constitutional reform phase kust be in the change we want to see. And this means all Kenvans must not only w but also articulate that change. Following the scuttling of the National Convention lye Council's (NCEC's), "No reforms, no elections" initiative by the political i 98 establishment. it would be hard to expect too much in terms of suggestionsfor change from Kenyan politicians. Hence, the critical need remains to keep Kenya's intellectual and other human resources in civil and relIgious society to spearhead, nurture and facilitate the movement for real constitutional change in Kenya.

It must also be noted that the search and placement of alternative sources of leadership away from politics is not unique to Kenya. When Mwalimu Julius Nyerere retired from presidency in Tanzania, he created an alternative centre of power, away from competItive party politics. Although he has been known to sometimes stick his fingers in the political party pie, one cannot totally discount him as a role model of leadership away from the political mainstream. When President Nelson Mandela retires in 1999, it will be interesting to see what kind of niche he will carve for himself outside party politics.

Party politics have been the mumc na buba of Kenyans' lives since independence. They are not necessarily bad, but in Kenya they have led to, among others, ethnic balkanizarion and the perpetuatIon of numerous social ills. To get out of thIs, all Kenyans must realize that one does not have to be a politician to play politics. Indeed, the very act of electing a political figure is a politIcal act. Hence, we should stop mheshiiniwa-worship and begin looking for the mheshiiniivci within us. And this does not necessarily mean one vies for political office. Only that we create an environment that we can collectively use to peacefully pursue our dreams and solve our common problems.

- F.

99 A Let Us Not Give Mass Action a Bad Name MUGAMBI KIAF AND WILLY MUTUNGA

One of the stories one hears about the late Gwasi Hastings Kamuzu Banda was that, unlike many dictators in Africa, his rule extended to the bedrooms of his cItizens. The Gwasi could declare a week of abstinence. Husbands would not sleep with their wives for fear of persecution if found out. The Gwasj here was no different from the Kabaka, the Mangi Mkuu or the absolute monarchs, simply put, The husband of husbands." The Gwasi had absolutely no legal or moral right to issue such decrees. The violation of rights must be resisted at all costs. if we cede our rights to dictators, there is ultimately no knowing where they will stop.

There has been a debate raging in the country on whether mass action is a good strategy to adopt in rejecting the Raila Committee Report. For some strange reasn, mass action is equated with confrontation, violence, rejection of dialogue and intolerance. All the utterances comIng from the religious leaders, politicians and individual Kenyans have assumed that mass action is negative, immoral, illegal and dangerous. Since the IPPG reforms, mass action has been our complete constitutional and legal expression of the freedom of assembly. movement, expression, worship, press and other rights. We must consolidate these rights that have been won. We must not cede these rights or compromise theni in any way. The utterances on mass action encourage the KANU regime to claw back the rights we have won in the last ten years.

Many Kenyans remember the violence associated with mass action without asking themselves who was the ciutfwr of the violence! In all these cases of mass action, the violence in the past and in recent times was state implemented or state sponsored. The Jeshi la Mzee was born on May 3, 1997 when this illegal "army" beat up the NCEC demonstrators. it Is important to recall that one of the sins they also committed was to steal Bibles from both Reverend Dr. Njoya and Rev. Samuel Muchuga. Private armies reflecting informal repression have direct links with the state. They would not be able to operate otherwise.

Mass action in the Kenyari context has been peaceful, non-violent and legal. Take for example the recent march on the World Bank and IMF about debt relief. This was a demonstration or procession in support of government and national interests. The law had been complied with. It is apparent that whether you comply with the law or not, neither the police nor the provincial (read presidential) administration have heard of the IPPG reforms. So the ,police stopped the demonstration, arrested some of the aticipants, and charged them in court. What will follow is predictable: total abuse he process of court through delays and ultimately the withdrawal of the cases. The age here is that mass action does not pay. Civic education workshops and theatre hi 100 performances have been stopped and people have been charged with offences that the police and the courts know are illegal. The police and courts have traditionally been bedfellows when it comes to intimidation against mass action.

What Kenyans are yet to realize is that the supporters of the KANU regime enjoy their democratic rights as expressed through mass action all the time. Honourable Raila Odinga can hold meetings anywhere in the country and no police officer will dare ask him whether he has complied with the law. We think however, It is totally wrong to deny Nonourable Raila Odinga's freedom of movement, assembly and expression. That cannot be the issue. The issue is when Honourable Raila Odinga does not say a word when theatre groups are being persecuted. We have always thought that the possible benefits of co-operation include the NDP restraining KANLI's rungu when it comes to mass action.

When Reverend Musyirni and Archbishop Ndingi say they will not support mass action, do they not realize that the religious processions they participate in are mass action, a legal and morally legitimate expression of freedom of worship? When A!çhbishop Gitari supports mass action as long it is peaceful, will it ever be peaceful unless we stand up against the standing policy by the state that mass action is never peaceful? Peace in Kenya is defined by the KANU regime and not by national consensus; so is love and unity Archbishop Ndingi of course remembers the mass action of May 10, 1999, which he called off because of the impending violence by feshi Ia Mzee. The violence here was not from the peaceful demonstrators but from the proxies of the state machinery of violence. Why should messages be sent that it is right for the regime and its supporters to break the law while others are upholding it? Why succumb to the wickedness of mIght is right? As Father Gabriel Dolari has argued, are we going to be denied our rights by threats of death when deaths are taking place on the roads, in the hospitals, in the homes and when all we want to tell the regime in a peaceful and non-violent manner is "Please Bcthc? na Mania, do something." By depctiiig mass action as something negative and evil, we are giving the K'ANU regime the weapon it has always used, and that bullies use, the culture of fear and intimidation, the culture of breaking the law with impunity.

One very crucial issue that the religious leaders seem to forget is that theirs is a calling that is based on mass movement and mass action. The Ufungainano initiative is the greatest expression of mass action! It is the exercise of crystallised rights before the agitation for the ratification of the new constitution.

We do not think the reformers have used the demands for mass action appropriately either. Mass action has been used as a veiled threat to the KANU regime. Yes, the reformers know the regime is frightened of mass action, and more specifically the people of Kenya However, mass action is our freedom of expression, assembly, movement, press and the KANU regime has to accept that in a democratic country, the government is told of the people's grievances by various legal methods. Wh would a regime that prides itself with having the support of the people be scared

101 group of demonstrators agitating for their rights? Why do we prevent the contestatlon of ideas? Why must the KANU regime always hear what it wants to hear? We will never be a democratic nation unless we learn to listen to the people. In this country, the culture of talking at and to the people starts with the fathers at home, the teachers in schools, the pastors, priests and imams in churches, mosques and temples, the chIefs, DOs, DCS, PCs, MInisters and above all, His Excellency the President. Do we have a culture of answering questions from the people we represent?

The workers rights are expressed through mass action, namely, the strike. Although the colonial and neo-colonial oppressive laws of this country have made this right in- exercisaNe, it can still be argued that withholding one's labour is a right that cannot be taken away. Nor can peasants be forced to sell their commodities if they do not benefit from the sales. By vilifying mass action, we are thereby encouraging the government to move into the homes of workers and the farms of the peasants and beat them to their places of work!

Many of our problems have specifically been caused by Kenyans handing over tleir rights on a silver platter to the regimes in power. Apart from its constitutional and legal powers, the office of the President has become more powerful because individuals and institutions cede theIr power to that office. You have the entire civil service and the parastatals, including universities, denying themselves their legal autonomy and ceding their power to make dedsions to that office. Why have a pretence of democracy when we allow President Moi to rule as an absolute monarch?

Kenya is in a transition that seems to never end, but it is a transition in which gains are made and continue to be made. We seem committed as a nation, out of fear, not to allow the country to slip back to the dark days of one party dictatorship. We are debating the end of presidential authoritarianism. Even our basic needs have become rights. We are even challenging the internatIonal economic system, the so-called new world order, to change its posItions, hence mass action on aid, trade and AIDS on the world scale. International trading, manufacturing and financial institutions are facing mass action the world over. Kenya has its part to piay We cannot play this democratic and patriotic role if we continue ceding the rights that are ours by law and by the constitution. I

hL 102 Let Us Also Learn The Good Lessons From The NCA Movement WILLY MUTUNGA AND MUGAMI KIAI

Sometimes we wonder what is the position of the fourth estate on the issues of change and reforms in the country. Apart from the familiar capitalistic ethic of maximizing profits and minimizing losses, supporting the status quo by Manufacturing Consent and creating Necessary illusions (famous titles of two of Noam Chomsky's books) we would have thought that the fourth estate would not, as a fragile democracy, shut up any voices or ideas! The fourth estate in Kenya has not been able to disguise its poirical position in the bashing of the NCA Movement. The Movement has replIed to these distortIons and we will not repeat the Movement's arguments here. I What we wish to highlIght are some of the good lessons in Kenya's dernocrtisation that we can draw from the events of last weekend at Ufurigamano house when the Movement conducted its Fifth Plenary. These are lessons that political parties and civil socIety organIzations may want to take note of.

The NCA Movement has had its grassroots elections within two years of the last plenary. Renewal of a mandate is important for membership orgarlisations. Political parties should learn this important lesson since they are afraid of grassroots elections!

The NCA leadership has given yet another lesson to political parties. Only two of the initial eight co-convenors sought re-election. These two co-convenors were returned to office to guarantee continuity and consolidate the political goodwill that the people have extended to the leadership of the spokesperson of the Movement, Professor Kibwana. Five new co-convenors were elected to represent key constituencies as well as reflecting the Movement's march to the grassroots. The co-convenors reflect the values of leadership that the Movement advocates. They provide moral and clean politics.

Collective leadership is still crucial to the Movement's values, vIsion and mission. The NCEC in its current leadership reflects provincial and district leadership, experts, and the think-tanks and chairpersons of crucial committees- In the NCEC the leadership is multi-ethnic, multi-racial, multi-religious, mu rti- regional and reflects gender, generation and the concerns of people with disability. The code of leadership and code of conduct ensures the values of an alternative political leadership will take root. The disciplinary committee will in duc course weed out the opportunists and their fellow travelers. In the Movement leadership is not claimed, it is merited. Leadership in the Movement is not static, it moves and it changes. Leadership becomes simply a merger of talents and skiUs and the Movement now knows what are the strengths and weaknesses 014 its leadership. The Movement has simply rejected the values of the current po1iti leadership

103 The political parties should also emulate the Movement's openness In making its accounts public. It is likely that our political parties have no accounts to talk ofl Public scrutiny and accountability are values that we practice with our democratisation demands.

AU Movements have their political views and the NCA is not different in this regard. The MovemenVs programme, plan of action for the coming years, its manifesto and the various resolutions of economic, social, political and cultural issues show clearly what the Movement stands for. Its ideology and political direction Is clear. It calls for an alternative political order in Kenya.

In implementing its political views, the Movement is mandated by its constitution to support political parties that will implement its programmes and honestly reflect its ideology and political views. The Movement has accepted what has been obvious to organisations of civil society: enslave politicians if they are to stay faithful to projects that reflect national good. The private sector and the military-industrial complex in the West have always done this and their will has been done by politicians.

A lot has been said about the foreign funding of the Movement. The amount of intellectual resources that have gone in the Movement is worth a lot more than the foreign funding. The sacrifices, the contributions and the commitment have been crucial. As Mao Zedong once wrote, extreme temperatures can hasten the hatching of a chick but however extreme the temperatures are, a stone cannot hatch a chick. The local factor here is important. The foreign factor is a catalyst, an expression of international solidarity that is becoming important in world politics. If the Movement can do so much with such meagre foreign resources, why has the government done so little with so many resources?

Democracy is about tolerance. The delegates to the NCA fifth plenary came up with many resolutions, which the media may not like. What the resolutions do Is to generate a discussion on all kind of issues in the country. The resolutions are a warning to the constitutIonal commIssion/s that they should be ready to listen and record all kind of constitutional concerns when they go out to collect people's views. The NCA leadership is not about to shut up Its membership because the leadership does not agree with the views of the membership. That has been the curse of our political parties and other organisations The different views and ideas must be allowed to contend. That is what many Kenyans would ask for.

The Movement came up with clear policies on two areas that all political parties and clvii society organisations are rarely heard to speak about the areas of foreign 19 domination and land. While the Movement's land policy borrows in part from the late JM Kariuki's position (the KPU position, that is, land to the tiller, still remains the most radical land policy to date) the policy is informed by the past and calls for a discussIon of this fundamental issue. Trying to give this issue to a commission that does not nt to reach any policy that is acceptable by the majority of the people (the Njonlo mmission, like other presidential commissions has the main objective of dodging L 104 and keeping the burning issues in abeyance) does more harm than good. The debate on land is reflected in many constitutional proposals and like a mole it is still underground dgg!ng fr waitirg to erupt. The Movement has something on the table for national discussion: Not iust freedom but land as well.

On foreign domination the Movement calls for a discussion, as this issue is tied to our economic reforms. Whether we call these issues gobalisation, glocalisation or imperialism., all the Movement is saying is that the new world order is affecting the world citizen adversely. Call it a global problem that is receiving a global discussion. The Movement is merely asking for the discussion on what must be Kenyas contribution to this debate and the action we wWtake.

We will wait with baited breath for the fourth estate to state its position, as a crucial stakeholder, on change and reforms. We will wait while you consult Paris, London, New York and of course your glocalisers. I

105 4ll4 The Options for Contesting Political Power: The NCA Elections Strategy WillY MLJTUNGA

No reforms, No elections has been the clarion call of the NCA movement since 1997. The NCA/NCEC has been proven right in political analysis and those sectors that opposed the call, namely the politicians and the religious movements., have come to recant their political mistakes. we should however, never forget the Biblical wisdom, "They have ears but they do not hear; they have eyes but they do not see." In particular, the politicians will never boycott elections.

It is a fact that unless there are constitutional reforms, and here we mean comprehensive reforms, KANLI cannot lose in the forthcoming elections. It matters not at all whether Mcii is running. as KANU will emerge victorious through its well-oiled system of riging elections. Somebody please tell the OP to stop daydreaming and to stop arguing that without MCi, Kibaki is first among political equals. The KANU/NDP alliance will carry out minimal reforms before the end of 2001 to ensure the political succession the Moi-KANU regime wants.

I, personally., see no contradiction between boycotting elections and the contestation of politIcal power. what Kenyarts understand by boycotting elections is the refusal to contest political power. if the boycott of elections was couched as a strategy, an alternative option or yet another method of contesting political power, politicians would not oppose it.

This strategy does not foreclose the NCA agitating for the resIgnation of the Moi- KANU regime on the basis that it lacks legal and moral legitimacy, a constitutional and legal argument that can be made. The strategy assumes that no comprehensive constitutional reforms take place. If by God/Allah's miracle that happens, the strategy Is to run for such elections under the structures of the NCA and the Mza]endo.

This election strategy is also a strategy for political successIon. It avoids the political inheritance of Moiism. Against this backdrop, therefore, the NCA election strategy should be:

• No reforms, No elections;

• Boycott elections if no comprehensive constitutional reforms are undertaken; 19 I • Straregise the boycott of elections as a clear contestation of political power cott of elections must undertake furious campaigns throughout the campaign

L 706 • Boycott candidates mut run in presidentIal, parliamentary and civic constituencies;

• There must be specific voting for boycott candidates, with boycott ballot boxes, papers and in different places from the ones designated by the Electoral Commission: places of worship would be ideal;

• Voters could be told that if they were afraid of voting in the boycott booths they could simply spoil their ballot papers and all spoilt papers would be counted as boycott votes;

• All eligible voters would cast theIr votes in the boycott vote whether or not they were registered voters. For example, the disenfranchised youth would vote for or against the boycott of elections (most likely they would vote against an election that denies them the right to vote) under the boycott system;

• We should be democratic and allow those who are opposed to the boycott to vote also in the boycott system;

voting and the counting of the boycott votes would be fair, free and open;

• If the boycott vote wins there would be a demand, by means of active non-violent mass action (people's power) if need be, the rIghtful place of its leaders in parliament. The boycott presidential candIdate would form the government, and if resisted, the people's power would be invoked;

• The NCA must bind the boycott government to undertake urgent economic, social and political reforms forthwith. Among the burning political reforms would be a new constitution. A programme of transItion can be drawn based on the great ideas generated on transitional governments;

• The NCA must from now henceforth debate all new ideas. we should ban the words, "it will not work" if they are used to close a debate or as a reflectIon of intellectual laziness!

I have always supported the view that if there is a single presidential candidate from a united opposition to contest the high office (and we would support this on clear conditIons and not simply because some of us are used to singing "Mol must go!' That condition must be the negation of Moiism by such an opposition unity) the rigging of elections would be easier to detect and the strategies in Philippines and later Yugoslavia based on the use of people's power would readily work. I doubt whether our politicians in the opposition will ever agree on a sole presidential candidate to face the KANU candidate. Kibwana's sexy idea of rotating the office of the executIve may yet fail to attract our presidential candidates.

The NCEC Must, Therefore, Give the NCA All Options for Debate

107 A4 Is Electoral Boycott An Idea Whose Time Has Come? MUGAMBI KIAI AND WILLY MUTUNGA

All glory comes from daring to begin Eugene F. Ware

"No reforms No elections" was the clarion call of the NCEC two months before the general elections. The JPPG had given the Moi-KANU regime the political initiative in constitution making. The international community supported the IPPG project. So did the religious organizations and some political parties. When parliament was dissolved and the date for the general elections set, only two of the politicians in the NCEC camp did not run for the elections.

Last week the Secretary General of the NCCK. Reverend Mutava Musyimi, warned that if there is no constitutional reform before the elections, the organization would boycott the general elections whenever they are called. Archbishop Dr. Gitari, head of the Anglican Church, has supported this boycott call. Some politicians have also supported the boycott call.

This warning by the NCCK is serious for the following reasons the NCCK is a crucial player in the Ufungamanrto Initiative of the parallel constitution making project; the NCCK has participated intellectually and in the reform of advocacy in the constitution making debate since the 1960 1s; the NCCK has played a crucial role in election monitoring, specifically in the recent general elections of 1992 and 1997; the NCCK has adequate infrastructure for carrying Out its threat: and the NCCK's relations with the Kenya Episcopal Conference of the Catholics and the International community, not to mention the new alliances with the Muslims, Hindus and general support from the secular civil society, make the NCCK's position stronger once proper mobilization for the boycott takes place.

The reason for the clarion call "No Reforms No Elections" have not changed. The argument has always been that the electoral playing field has not been level. One of the brilliant concept papers on the issue of the free and fair elections has been authored by no other political party than the NDP. This paper, among others, was used in 1997 toagitate for the call for minimal reforms to address the issue of free and fair elections. The IPPG, however, addressed these minimal reforms in a half-hearted manner while leaving the issue of comprehensive reforms to the Eighth parliament. No comprehensive reforms have taken place, and it seems very certain that what can be expected out of the Raila efforts are minor minimal reforms. We doubt whether the great paper by the still in their archives. It islikely that the NDP has since banned the paper given —rent_policy of cooperation!

108 If the electoral field is to be level, the implementation of the IPPG reforms is key. The unfinished business by the IPPG must be completed: democratizing the KBC so that it is the voice of all political parties and civil society; outlawing the security apparatuses of the state and the civil service from the electoral process; making the Electoral Commission independent (the opposition political parties will be the first to agree that their representatives at the CommIssion have not made it independent) by giving it more powers in the management of the elections; legislating against decisions of the election courts that do not make sense in a democratic society; opening the entire country for all political parties and citizens to participate in the campaigns; ensuring complete security for all citizens and political parties duringthe campaigns voting and counting of votes; reviewing the constituencies; funding for all political partIes; outlawing the use of state resources by the ruling party during the elections; installing an interim government to oversee elections; guaranteeing that the youth are not disenfranchised and other reforms that a casual perusal of the NDP concept paper will reveal.

A snap election or general election without these minimal reforms would reshlt in total violation of the right to vote. Comprehensive constitutional reforms are not about elections. They are about fundamental changes in the society that constitution making addresses, including the electoral process. Kenyans are expected to discuss their problems and how these are reflected in constitutional issues. Civic education is supposed to prepare the country for important participation in the constitutional reforms The Moi-KANU regime has erected barriers against the Constitution making process through theerigineering of the constitutional stalemate, the constant cycles of violence, intimidation, zoning off areas it calls strongholds and fuelling rumors and propaganda about snap elections. The general elections fever is meant to convince all Kertyans that there is no sufficient time for agitating for a new constitution. And for Kenyans, contesting political power is through elections. But, the boycott of elections has never been used by Kenyans as a form of contesting political power.

However, the boycott of elections is another form of contesting political power. For it to be effective, the call to boycott elections must go beyond mere rhetoric. A lot of electoral boycotts give the regime in power a nice-walk-over back to power. Examples of such eventualities are legion. As long as the international community and some local vested interests legitimize the flawed elections, then that is the end of the matter. The international community fully supports periodic elections as a form of legitimacy. it is a mechanical exercise that reinforces the argument by Marx about elections In = nineteenth century Great Britain. Marx observed that the EnglIsh workers were given a chance every five years to elect one of the bourgeois parties that would oppress then for the next five years What the NCCK is saying is that the elections are not going to be mechanical processes anymore, and the NCCK does not want to monitor elections that are nether free nor fair nor peaceful.

What will make the call for a boycott of elections effective and successful? The ç JA must have the support of the Kenyan people who must be mobilized. The NCCV

109 other religious organisations are capable of mass mobilization. As those who support the general elections move freely around the country, those who support the boycott of elections must have the same freedom to put their arguments across. Political and civil rights must be guaranteed to all.

The call for a boycott must be a contestation of political power. If the call for a boycott wins (and this is not difficult to compute), then this call is legitimate and political power must be handed over to those behind it. In the Philippines the opposition political parties had one presidential candidate, and they knew they would win. When the Marcos regime rigged the elections, the people's power was about puttIng the legitimate government in power. In the case of Kenya the opposition political parties will never field one presidentIal candidate. A different form of people's power is necessary. If the boycott call succeeds, there must be a government in waiting in place so that there is no vacuum. What are the different forms of government in waiting?

The NCCK and its aJlies can proceed to produce a new constitution for Kenya. 114 a conference called to ratify the constitution, an interim government can be formed to be a government in waiting in the event the boycott movement succeeds. Such a government would ratify the constitution. Even without a new constitution, a conference for this purpose is possible, and the government in waiting can be charged with spearheading the agitation for the boycott of elections. For every contested constituency, civic or parliamentary, as well as the presidential positIon, movement candidates would be lIned up to oppose the candidates running for elections. The only difference for the boycott candidates would be that they would not offer themselves for the elections. If their boycott vote wins, they would all be the parliament in waiting, and the boycott presidential candidate would form a government.

If the religious organisations do not call for such a conference, the NCA/NCEC can do it, conduct the boycott vote and have a government in waiting. That way, the battle lines would be drawn between the reformists and those forces that are against reform. Contestation of political power would be decided on the issues of reform and not the issues that political parties have used to divide the people of Kenya.

The boycott movement must also have a clear programme agenda, an ideology and present a clear alternative to the status quo. Kenyans will not boycott elections if they see the government in waiting as another bunch of oppressors with no hope of carrying out fundamental economic, social, cultural and political reforms. A clean break with the past is dearly possible. The easy option of criticizing the status quo will never work. Kenyans need to be convinced that the status quo can be changed and convinced of the concrete ways it will be changed.

The boycott call has been made in good time, but there are the dangers that it might Isnappark a election so that it flops like the NC.0 crusade of 1997. The NCCI< must of this. The boycott call may also be welcomed by the current regime because it may give it the excuse it needs either to expose the elections or declare a state of emergency and thereafter stay in power

The Moi-KANU regime does not intend to carry out constitutIonal reforms. It intends to undertake elections that are neither free nor fair nor peaceful. Its main priority is the succession issue. Even without N4o1, Moiism must reign supreme. It is an astute regime with resources, including full-blown official and unofficIal machIneries of violence. As it becomes more insecure, it becomes more vicious.

If we want to stop the regime in its tracks, the boycott of the elections is just one of the peoples weapons. if the NCCK and their allies organized for the regime to resign here and now, the boycott of elections would not be necessary. The NCCK can, too, organize for a government of national unity as an interim governrnent.to oversee an appropriate tranSitiOrL

The vicious cycles of intellectual and political surrender must now end. Whatever idea we have must be the change we want to see in Kenya. Our national survbjal is at stake here.

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11 I _AA The New Alternative Political Leadership and Fundamental Change in Kenya WILLY MUTUNGA

You must be the change you wish to see in the world Mahatma Gandhi

Recently the Dcily Nation carried an analysis of a new political movement, which we now know as Mwuungano Wa Mgeuzi with its clarion call Mageuzi m Jukumu [a Ummc. Honourable Mturnishi' Augustine Kathangu gave the public the Impression that leaders of civil society pooh poohed this political initiative. Far from the truth!

Leaders in various sectors of civil society and, indeed, leaders from all sectors of society are all talking about fundamental changes in this country we all love Wry much. This is a national consensus. When any group surfaces and states that it will make a difference in the country. every Kenyan is all ears. Those who support the status quo listen even harder. However, let us face it: Keriyans are bound to be skeptical because, as Honourable George Arlyona's favourite story goes, they have seen camels give birth to rats! What a disappointment for the owners of the ships of the desert: Kenyans.

No leader of any civil society organisation would begrudge our political leaders their courage, their consistency in the pro-democracy struggle and their patriotism. Those leaders who are cafling for fundamental changes in the country want Kenya to note their track records, and we guess, the track records of those who support them. It becomes very important to ask ourselves what are the criteria for the new alternative political leadership.

• Granted Kenya's catalogue of problems that we need not belabour here, in our opinion, a new alternative political leadership should display the qualities that are totally lacking in the current political leadership. In sum, the issue is what are the qualities reflected by the current political leadership in all political parties that Kenyans do not want? We are talking about poLitical leadership we do not expect angels, but we expect in the new political leadership clean politics, proper ethical behaviour and values that Kenyans can look at and in unison cry out, they are different from the current political leadership. So what are these qualities, the very antithesis of the qualities that negative political leadership in Kenya has displayed?

• Newaiternativepoliticalleadershfp must have as its ideology, at the very minimum, ,a deep commitment to social democracy.

yans yearn for political leaders who are incorruptible.

112 . Kenyans yearn for leaders who are patriotic, natIonalistic and visionary.

• Kenyans do not yearn for leaders who have pillaged the national treasure who have cornniftted crimes, who have fostered politically motIvated murders of workers and peasants in the name of "ethnic clashes."

• Kenyans do not yearn for leaders who are violators of the human rights of Kenyans: land grabbcrs, individuals who have caused deaths to Kenyans through corrupt deals and individuals who are gender insensitive and have no respect for women, children and people with disabilities. Rapists, chIld molesters and abusers and murderers of Kenyans have no place in the kingdom of new alternative political leaders.

• When it comes to the track records of indMduals, we would argue that individuals who were homeguards during the Mau Mau War of Independence and other Kenyans who supported the 8ritish forces against the forces of independence are not part of the new alternative political leaders. PolIticians who have betrycd Kenya's Interests in various ways since independence also fall under this category.

• Wreckers and saboteurs of people's economic, social and cultural progress in the name of development do not qualify to he in the new alternative political leadership.

• Ethnic chauvinists, cultural chauvinists, religious chauvinists, regional chauvinists, generation chauvinists, gender chauvinists and racists are not part of the new alternative political leadership.

• Kenyans do not yearn for political leaders who are liars, lack probity, cannot be trusted and who are solely committed to self-interest and selfishness.

• Kenyans do not yearn for political leaders who are dictatorial, intolerant and ignorant.

• Kenyans yearn for their heroines and heroes to Lead them and not the traitors, oppor.tunists wreckers and their fellow travelers to do so.

• Kenyaris yearn for political leadership that is collective and one that is based on tests of leadership that earn respect and shun imposition.

• Kenyans yearn for political leaders who are committed to and cherish equality of all human beings all over the world.

• Kenyans want leaders who confess their political sins, return their ill gotten gains I to the state confers, pay compensation to those whose lands they have stolen, pay compensation to the relatives of the ones they have killed and are ready to change and embrace new values of alternative politIcal leadershIp. The terrain of the road to Damascus must be one of total conversion.

This list of qualities of the new alternative political leadership is n:t.ej Members of the NCEC must refine it, add to it or subtract from it. The qualities we decry here are the hallmarks of the Moi-KANU leadership and the "Mci-lets" in the opposition political parties. In the past the NCA, in smaller groups has managed to come up with profound documents on a variety of Issues. I have no doubt at all that the NCA will come up with crIteria for a new alternative politIcal leadership. After the NCA it is the responsibility of Kenyans to enrich these criteria.

The idea of a new leadership that is multi-ethnic, multi-religional, multi-racial, multi- regional and one that represents gender equity and equality, represents people with disabilities as well as representing generational concerns will help the leadership avoid being bogged down with debates against all manner of divisive tactics. This leadership does not want to spend useful time arguing that it Is not a Kikuyu or Luc leadership; arguing that it is not a barn conspIracy; arguing that it has not marginalised the Somali, the Mijlkenda, for example; arguing that the minorities have not been sidelined; arguing that the Kalertjin are not being finishcd and other similar arguments act nausearn.

The idea of a new political leadership must be clarified by examples. I do not Want to spoil your political appetite by giving these examples now, but let me just say that for every Charles Njonjo there is a Wangari Maathai, and for every McI there is Tirop arap Kitur or, if you want to spice up the discussion I will end by saying that for every Shariff Nassir there is a Alamin Mazrui, and for every Mulu Mutisya there Is a Wanza Kiokol Can we now start generatIng a new polItical leadership for Kenya that comes from the public and private sectors, civil society and Kenyans In the diaspora? What a very easy task?

I I

kLII. 114 Members of the NCEC must refine it, add to it or subtract from it. The qualities we decry here are the hallmarks of the Mol-KANU leadership and the h1Mof.letsH in the opposition political parties. In the past the NCA, in smaller groups, has managed to come up with profound documents on a variety of Issues. I have no doubt at all that the NCA will come up with criteria for a new alternative political leadership. After the NCA it is the responsibility of Kenyans to enrich these criteria.

The idea of a new leadership that is multi-ethnic, multi-religional, multi-raciaL multi- regional and one that represents gender equity and equality, represents people with disabilities as well as representing generational concerns will help the leadership avoid being bogged down with debates agaInst all manner of divisive tactics. This leadership does not want to spend useful time arguing that it is not a Kikuyu or Luo leadership: arguing that it is not a bara conspiracy; arguing that it has not marginalised the Somali, the Mijikenda, for example; arguing that the minorities have not been sidelined; arguIng that the Kalenpn are not being finished" and other similar arguments ud nauseum.

The idea of a new political leadership must be clarified by examples. I do not want to spoil your political appetite by giving these examples now, but let me just say that for every Charles Njonjo there is a Wangari Maathai, and for every Moi there is Tirop arap Kituror, if you want to spice up the discussion, Iwill end by saying that for every Shariff Nassir there is a Alamin Mazrui, and for every Mulu Mutisya there is a Wanza Kioko! Can we now start generating a new political leadership for Kenya that comes from the public and private sectors, civil society and Kenyans in the diaspora? What a very easy task?

iLl 114 New Form of Trade Union Movement Emerges in Kenya MUGAMBI KIAI AND WILLY MUTUNGA

A new form of trade union movement has emerged in Kenya. It comprises two groups; the alternative trade umoii leadership that acknowledges that workers' rights are human rights, and the Kenya human rights activists. The current trade union leadership in Kenya has greeted this alliance with clear hostility, mockery, arrogance and has enlisted the cooperation of the employers and the government to vilify this alliance. What is clear, however, is that the workers are demanding their rights whether they get them through the activitIes of the traditional unions or the new form of trade unionism. I The struggle to democratise Kenya has given birth to many movements in the civil society: the women's movement, the youth movement, the movement of the people with disabilities, the environmental movement, the movement against land grabbing and the human rights movement, for example. The current trade union leadership has been unmoved by these movements and.has resisted calls by the workers that the trade union movement or the labour movement in Kenya seize Its rightful position in the democratisation of the country.

The trade union movement has had a glorious history in this country. Reading the writIngs of Markan Singh, Tom Mboya, Clement Lubembe and the works of historians brings out this glory. Markan Singh, Fred Kubai, Muindi Mbingu, Chege Kibachia, among others, remain heroes of the trade union movement. The role of the movement in the struggle for independence has been well documented; its role in the revival of multi-partism after the Kenya People's Union (KPU) was formed is also well documented.

The not so.glorious history of the trade union movement is well known also: the a&eptance of the various discourses that have resulted in the exploitation and the enslavement of workers and peasants in Kenya, such as Independence, development, tripartite arrangements and industrial peace; the acquiescence of the banning of strikes and the invocation of colonial and rieo-colonial repressive laws that have denied the workers and peasants the right to organise and the right to agitate for their rights.

Look at the trade union leadership at the moment. The trade union leaders continue to sit on such boards as the NSSF and the NHIF where the pillage of the workers' pensions have taken place without these leaders uttering a word. COTU collects money from workers and never accounts for the funds, a sum In the regIon of five million Keriyan shillings per month. COTU is famous as an employer that is late in payingJ workers With Honourable Joseph Mugalla (known to his cronies as buy Joe")dr

.115 perhaps three salaries as the general secretary of COTU, the Kenya Union of Commercial Food and Allied Workers and a member of parliament, COTU has distinguished itself by negotiating a minimum wage for workers that is a gross violation. of the human rights of the workers. The mInimum wage they negotiated this year cannot meet the basic needs of workers and provide them with some discretionary income.

"Jolly Joe's" "brothers," namely, the general secretaries in other unions and in the COTU headquarters, are trade union relics from the colonial and early independence period lacking vision of how to struggle for workers' rights in the new world order. "Jolly Joe" may be succeeded by, among others, Francis Atwoli, the general secretary of Kenya Plantation and Agricultural Workers' Union. The plight of plantation and agricultural workers is well known, and this union cannot claim to have done much to resist the enslavement of plantation workers by multInational corporations and companies owned by rich Kenyans. The moment people know what goes on in the flower farms, for example, the various colours of the flowers will not symbolise beauty, but will symbolise the blood, sweat, exploitation and death of the workers.

COTU has not played any role at all in the constitution-making processes that have gripped this country since the 1990s. The restriction of rights of workers through draconian legislation, the struggle for the independence of the trade union movement, the control of the resources of the workers and the right to organise by the alternative trade union movement are just a few of the issues that COTU could have taken up in this debate. COTU was totally asleep when the Association of Local Authorities of Kenya (ALCAK) took a clear position in the constitutional debate on the autonomy of local authorites and their future in this country. COTU was satisfied discussing its own constitution as a way of paying lip service to the national constitutional debate. At some point during the constitutional debate, COTU woke up to the reality that it was an important stakeholder, but very quickly went back to sleep again.

The trade union movement, like other movements in the civil society, has suffered from the repression of the Kenyan regimes since independence. At some point COTU ceased to be non-partisan and became an appendage of KANU and its government. COTU shared this distinction with Maendeleo ya Wanawake. Since the advent of mulripartism, the two organisations have been unable, in practice, to end this partisan relationship.

The current situation in the trade union movement has been resisted by some trade • unionists and human rights activists Seeking to implement the Vienna Declaration of 1993 that decreed all human rights as integrated and indivisible, human right activIsts in Kenya have created alliances with alternative trade union leadership under the • banner "workers' rightsare humn rights." There have been some successes, and this alliance is at the moment focusing on the plantation and agricultural sector. The Hiance will soon move into other areas of trade union activity. It has become clear to alliance that national corporations are as bad, if not worse, than multinational

116 corporations in their treatment of their workers.

Workers have basic needs, whIch are human rights; they need a safe working environment, a just wage and other rights. Human rights are broader than the legal rights that only workers with strong union leadership can ever hope to achieve. The international human rights movement has also agitated for the ethical behaviour on the part of multinational corporations, constantly condemning corporations that use child labour or cause the death of workers through dangerous chemicals and pesticides, among other unethical behaviour. Although this campaIgn has reflected in part some kind of monopoJistic competition, with each corporation trying to prove that it is more humane than their competitors, the campaign is part of the resistance to unmitigated free enterprise. The mass action in Seattle, the campaigns against the IMI and the World Bank and against capitalism, are part of the resistance against the new world order, an International economic system that is enslaving and kIlling workers and peasants the world over.

The trade union movement In Kenya has always had these international conneions and networks. The trade union movement, however, hasnot used them as strategically as the human rights organlsations have used their networks with the international human rights movement. The trade union movement has also failed to enlist seriously the cooperation of the campaign by internatIonal consumers who do not want to feed. on the "blood" of the workers in the Third World. By failing to resist the operations of the multinational corjorations and national companies and by being prisoners of the national states, the trade union leadership in this country has betrayed workers. Rarely does one hear the trade union leaders sing-the workers' anthem, repeat the famous clarion calls, Limo/a ni N,uvu and Solidarity forever. Unlike President Mugabe who still uses the word "comrade" as a matter of faith, the trade union leadership in Kenya has lost faith in its ideals. "Jolly Joe" and his fellow travellers have banned the workers' national anthem and buried the workers' clarion calls.

The Kenya human rights movement has taken the workers' plight on board The response of the current trade union leadership to this solidarity between the alternative trade union leadership and the human rights activists has been hostile. One recalls the same leadership warning as the NCEC in 1997 to stop calling for strikes since that was the role of the trade union leadership. This current leadership is saying that workers' rights are not human rights! Such a leadership does not deserve to represent workers anywhere. It is on this basis that the Kenya human rights movement, with the alternative trade union leadershIp that acknowledges that workers rIghts are human rights, will now fight for leadership in the unions when elections are called. 51 The dinosaurs of the Kenya trade union movement cannot be allowed any longer to lead the workers into their exploitation and death. .

117 Ad The Call for a National Convention WILLY MUTUNGA

I am writing to clarify a few points about the stand of the 4Cs on the issue of the National Convention.

The demand for a National Convention is premised on the principle of social contract: the contract between the rulers and the ruled. In this contract it is the ruled who should be the dominant and overriding party. This is why one of the fundamental terms of any social contract is the power by the ruled to recall the rulers and even disempower them. The principle here is that the ruled do not cede all their powers to the rulers. The rulers are in power at the behest of the ruled. The constitution and all laws are not above populace, the ruled. The Kenyan constItution and the laws operating under it have accepted this principle. This is a principle popularised on the #ve of capitalism and was a reflection of the resistance of feudalist authoritarianism and backwardness. Unfortunately for Kenya 1 the feudalists have the responsibility to operate this principle and it is not surprising that they have never accepted it This principle has remained too advanced and too progressive for the Kenyan feudaHsts to accept it. Remember what Hon. William Ole Ntimama once said: "President Mcii was appointed to rule Kenya in meeting between God and Jomo Kenyatta and no mere mortal should oppose him!" There you go, the divine right of kings well articulated. Kenyans however, have the legal and moral right to demand of the rulers that they perform part of their terms of the social contract. It is on the basis of the ingredients of the principle of social contract that I comment on the ongoing debate on the National Convention.

There is no term In the social contract that gIves parliament the power to grant Kenyans the permission to hold a National Convention. Grateful as we all are to Hon. James Orengo for seeking that permission through a motion in parlianient and for agitating for constitutional reform, the fact remains that Hon. Kiraitu Murungi is right when he says that a National Convention can take place with or without the ruling party. One must add that a National Convention can take place with or without the opposition parties as well. What must be clear is that all political parties must be invited to attend because:

• The ruling party Is a signatory to the social contact, and;

• The opposition parties as prospective governments in waiting are expected to implement the social contract when they come to power. What political parties must realise is that they do not take the voices of the people when some of their • members are elected to parliament. The people retain their voices and opinions nd the right to represent themselves in any natIonal forum. If, however, the ruling Larty or indeed the opposition parties refuse the demand by Kenyans to attend

718 such a national forum, Kenyans can carry on and discuss the agenda of the convention.

There is similarly no term in the social contract that provides that the executive or the government has to consent to a national convention. The argument that the executive swore to defend the constitution is not valid when Kenyans want to debate and change that constitution. On the strength of the social contract, Kenyans can, through legal boycotts and legalised clvil action, force the government and the executIve to attend the proceedings of the National Convention. It is a fundamental term of the social contract that the state shall not use its machinery of violence to justify its breaches of that contract.

Those institutions reflecting this violence should always realIse that there is no force in Kenya that can intimidate twenty-eIght million Kenyans. The executive is also heard to say that the constitution is a serious matter to be left in the hands of Kenyans other than those in par1iament Nay the constitution, is too serious a project to be left to one person in whose hands a lot of political power is concentrated or to a parIiamenthat may want to have the powers of the executive kept intact. President Mo! should be the last Kenyan president to have such powers, which pervade all aspects of national life. It would even be much better to have him serve under a regime of a decentralised and democratised political power during his last term of office if re-elected. As we approach the twenty-first century, we cannot possibly have an indMdua] deciding on all aspects of our national life. The New World Order requires a collective national intellect if we are going to survive as a nation.

A National Convention does not overthrow the regime in power. It is committed to the Rule of Law and accepts the status quo until a new constitution is in place. There has been misinformed talk about "revolutions" as the only rationale for holding a National Convention. The purpose of this talk has been to intimidate the constitution pro)ect and the process of the National Convention. If the ruling party partIcipated in drawing the rules of the convention, one issue that would not be in dispute is its power to rule until a new constitution is agreed upon. The rules of the National Convention must be made public and agreed upon by the people. it is only the politicians who are capable of manipulating the process in their struggle for political power. There are many Kenyans who are genuinely interested in a new social order. Not many Kenyans are keen to participate in active politics. That may explain the calibre of the Kenyan politicians. It is important to add that at the moment, one needs a lot of money to participate in the Kcnyan electoral process. Sadly, money and good political leadership are strange bedfellows.

What the 4Cs has demanded is a discussion of the constitution that is participatory and all-inclusive. The national consensus that will emerge will be reflected in a constitution. Parliament will ratify that constitution. It will not have the power to change it because that constitution will reflect the peoples will. The Natlona Convention also decides when the new constitution will come into operatIon.

119 What happened to the Constitutional process in Uganda is an abuse of the peoples' will. How do you involve the people and then ask a few of the people (call them representatives if you will) to subvert the will of the people? The Ugandan experience reminds us of the findings of the Saitoti Review Committee, which subverted the will of Kenyans on the issue of pluralism. A National ConventIon simply discusses all sets of problem afflicting the nation. It discusses the solutions to those problems, In Kenya at the moment the entry point to the discussion of these problems is the constitution project. Thus we can talk about the politics of constitution making and the spirituality of constitution making, to mention just a few of the aspects. What is there that cannot be discussed under the constitution project? Nothing under the sun

A National Convention has to agree on its ground rules; it has to agree on how the proceedings will be recorded and who will keep the records, it must have rules on who will manage the convention (this is why non-partisan religious leaders play such a crucial role) and how such people will be chosen. These decisions are not decisions of a few people. They involve major stakeholders in the country. I am certain that if these people are chosen by all of the political parties, religious organisatfons, orgaised sectors of urban and rural society (the press, NGOs, trade unions, popular organisations, pressure groups, the private sector etc.) and individual Kenyans who are heroes and sheroes, there would be undeniable national consensus on their appointment. These eminent women nd men would then seek the vIews of Kenyans and arrive at a consensus on what Kenyans want on the issue of constitution. The talk about "eminence" or "integrity' does not in itself suggest that we should be looking for angels. ALL that is being said Is that this process should involve people who are not going to use the process for narrow political gains; people who are objective and focused on national Interest; people who are non-partisan in the sense that they are structurally allied to any partisan politicalinterest; people whose politics are well known to embrace the vIsion of a National Convention. Kenya is full of such men and women. If anybody asked for names they would be legion. What is required is to pick some of these people on known criteria such as genders youth, religious organisations etc. A National Convention is never an event, but a series of events that discuss all the issues highlighted here.

One issue is worth clarifying. Who are Kenyans who are "the people" in Kenya? We have examples of individuals who claim they are the people. We have examples of classes and powerful social groups speaking on behalf of the people and becoming the people In the process. We have had institutions holding themselves out as the people. In Kenya everybody talks on behaLf of the people. What the 4Cs means by people is each and every Keny.an individually or through an organisation of his/her choice. And that Is not all. The Kenyan must be informed of what is being debated. The best way to ensure this is to expose every Kenyan to all the contending views on the issue in dispute. This means that the routs to the grassroots must be open and the hied wires around the grassroots must go. Let the various ideas contend and let e make informed choices.

720 A project of this nature does not take a few years. This explains why the 4Cs has a minimum and a maximum agenda. Our minimum agenda is pegged to a peaceful, free and fair general election of 1997. The maximum agenda is fundamental restructuring of the current constitution. The reasons for this maximum agenda have been discussed and are known by all political parties, organised sectors of dvii society and individual Kenyans. It is clear to us that the legal reforms we may seek may not take place before 1997 unless parliament agrees. Recent debates in parliament show that the ruling party is adamant in its refusal to deal with these minimal constitutional and legal reforms. The reason for this reluctance is obvious: the current constitutional and legal status quos favour KANIJ's political fortunes and it is not in its Interests to carry out the reforms. There is the argument that Professor Kibwana and I have advanced, which is that we are convinced at this point that the elections in 1 997 are not going to be peaceful, free and fair. This is a realisation Kenyans should take to a National Convention.

The only provisions of. the constitution that all political parties are keen on at the moment pertain to the occupation of State House. You will note that KANUwouId have us believe that the project aimed at the occupant of State House is a bad thing. The opposition sometimes, quite to my amazement, wishes to deny that this is its sole prolect! Since everybody is focused on one issue the occupation of State House, why do we not make this competition for state house free and fair? Why can't all the parties in parliament agree thatwe will elect our president on a simple maority vote? This may unite the opposition more readily than the search for one presidential candidate from the opposition parties. That search returns the danger of divIding the opposition parties further.

When the general election takes place is of no interest to many Kenyans who believe that the election will not be free and fair. What chance does a single opposition presidential candidate have? Yes, rigging of such an election is more diffIcult when you have one candidate from the opposition, but it can be done. In any event if the playing field were level, political competition would be a healthy aspect of democracy. Even if Kenya had one hundred and thirteen political parties as Bangladesh has, the popular candidate would win. Opposition unity goes very well with demands for peaceful, free and fair elections. Why should we ask anybody in Kenya not to run for the highest office in the land? The Kenyan youth are saying that anybody over eighteen years should contest the presidency. The current age of thirty-five for presidential hopeful Is seen as discriminatory. It is difficult to convince anybody that a seventy- • year old Kenyan has more right to be president than an eighteen-year-old. What guarantee do we have that any Kenyan elected on the basis of the current constitution and laws would not be authoritarian and dictatorial? What we should be discussing is the reality of an illegitimate government under the current laws and the constitution. And a National Convention would discuss that aspect as well.

I have great respect for the convenors of the Friends of Democracy (FO). Our eiectoA laws guarantee that the winner takes alL I do not know why it is assumed th

121 opposition parties can be reformists. Is it not true that the leadership in the opposition parties wants to inherit the constitutioni], administrative, extra-judicial and illegal powers of the Presidency intact? And why cannot this reformist government comprise all the political parties at the onset? KANU is not homogenous. It has its conflicts and contradictions. There are many in KANU who would want to participate in the reformist government. what we should realise is that as long as the powers of the presidency are forever vast and unIimited no political party will be democratic, the ruling party included.

What Kenyans should discuss at the National Convention are all of the political problems facing the country. It should lay down a strategy of what is to be done here and now. It should discuss among other issues the coming Genera] Election. It should discuss the ground rules for fundamental constitution change. It should discuss how it would enforce its decisions. For a National ConventIon to be successful it needs to be a climax of concerted strategies aimed at preparing the people to make informed decisions.

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hLL 122 E. Election Monitoring Some Thoughts on the Monitoring of the General Elections 1991 WILLY MUTUNGA

1. Introduction If we agreed with Karl Marx that every five years (in the case of Britain durIng his time) the workers (one can add peasants, too) are asked to choose which of the political parties of the bourgeoisie would oppress them for the next five years, election monitoring would be the interest of the political parties only. This assertion by Marx is still insIghtful and forceful, but in the case of Kenya there are other vested interests worth considering. Yes the capitalists are still with us, represented by national and foreign interests; so are the workers and the peasants. In addition to these crcial social forces we have a significant and influential middle class in the public, private and voluntary sectors. Allied to the workers and peasants are the unemployed youth, the landless, the slum dwellers, beggars, street children and a social force that is colLectively called the Walalahol. Clearly one of the crucial issues that is being agitated in Kenya during the election period is what l

The practice of election monitoring has been accepted in liberal democracies as an important yardstick to gauge how free and fair elections are. A free and fair election is the constitutional right of every citizen who is eligible to vote. There is in Kenya the mistaken belief that this is a right enjoyed by the political parties only. Political parties tend to see the main purpose of a free and fair election as the contest for political power in which they are the main actors. These are not, however, the only rationales for election monitoring. Nations that claim to be democratic want their entire democratic system assessed periodically. Elections are just one of the many windows for such an asSessment. Nor should it be forgotten that countries with developed democracies have invited election monitors. One tends to get the impression that many people think it is the Third World countries that are subjected to election monitoring. A fundamental criterion for election monitoring is the legitimacy of regimes that have their election monitored. Third World countries need this legitimacy more than developed countries. Third World Countries invariably have to prove their legitimacy to survive. Yet election monitoring has also been an industry, an imposition, a tour to various countries by bands of professional monitors and a reflection of vested interests in various national and international organisations. For both international and local NCOs this is an area where fundIng is available. If there were no elections, such organisations may fold up. Such organisations need to stay in the ood books of the electoral commissions to gain accreditation. Election monitors can part and parcel of unfree and unfair elections. The seal of approval by some crucial tors means the survival for the regime, even in cases where elections have been I 124 rigged. In Kenya the various rationales for election monitoring are constantly debated. This paper will highlight some of those issues.

II. Free and Fair Elections Elsewhere Kibwana and I have discussed the criteria for free and fair elections. The main thrust of the criteria is that election monitoring is more than the observation of the mechanical casting of the vote on Election Day, the counting of votes and the announcement of the results. The broad criteria for free and fair elections have a lot to do with democratisation and how elections reflect that process. The call for an assessment on electIon preparedness or readiness Is premised on the argument that there are criteria that make the holding of an election futile. Kthwana and F argued that the general election was not going to be free and fair on the basis of the criteria we invoked. The criteria we used rely on some national, regional and International principles that are invoked to determine whether or not an election is free and lair. Sonic of this criterion was used to assess the ZanzibarI elections in 1 995. It is important to mention also that some groups or interests may prioritise some of the Iriteria. A striking example of this is criteria given to the Kenyan government by the foreign missions based in Kenya.. the Donors Democratic Development Group (DDDG). In their Aide MetnoU-e on Free and Fair elections FIectinn-,, the donors recognised the inherent sovereignty of Kenya in matters of elections, but observed that certain universally recognised principles ... constitute a framework for free and fair ejections".

Among these principles the donors included access to the ballot, access to the electorate, access to information and freedom of assembly. These are just four out of the twenty-six criteria that Kibwana and I discussed. It is also clear that democracy means many things to many, of the stakeliolders. I have heard it being said that a peaceful election is not a criterion for free and fair elections because African electIons are never peaceful.

It seems there is a general consensus among certain stakeholders in Kenya that the general elections will not be free and fair. This is clearly the view of the two organisations, namely the National Council of Churches of Kenya and the Episcopal Conference of Catholic Bishops. The National Convention Assembly has made the same assessment. Some political parties have made the same assessment. With this assessment there has been differences of opinion on what is to be done. None of the political parties (assuming Kenneth Matiba has no party) has stated that it would not participate in the elections. The religious groups have asked their flock to vote and vote wisely.

There may be reasons for this apparent contradiction between an assessment that the elections are flawed and the urging of Kenyans to participate and vote. Religious leaders may be convinced deep down in their conscience that asking Kenyans to vote a notwithstanding the flawed elections is morally right. They may also be convince that patriotic and critical voices in parliament will enhance the country's struggl

125 democratisatton. They, therefore, see a role that parliament can play notwIthstanding its weaknesses. Fears have been expressed that should KANU garner over two-thirds of the parliamentary seats, the constItution-making protect may be strangled. Religious leaders are not convinced that struggles outside parliament are peaceful and non- confrontational. They are still debating "active non-violent action" cautiously. Religious leaders believe that political change is gradual and incremental and that flawed elections are not the end of the struggle.

The political parties may accept the views of the relIgious leaders. Some political leaders are in the twilight of their political careers and they are looking at the eIghth parliament as their last. For others being in parliament has its status value and a decent income and credit facilities. There are some individual politicians that have decided not to participate in the elections, which they see as flawed. These politicians are banking on issues of the legitimacy of elections being raised. They will be the obvious leaders of a movement that has already rejected the elections. They are banking on having a head start in transitional politics of the post-election period.

One criterion for free and fair elections, which may be tested very seriously, is the percentage of registered voters that does turn out to vote. It is reasonable to forecast that the turn out will be low. This criterion is also central in the argument that a low turn out of voters not only confirms that the electIons were neither free nor fair, but also totally illegitimate.

III. Monttoring on the Ground The Institute of Education in Democracy (lED) has embarked on election monitoring of the forthcoming general elections. The Institute has teamed up with the Catholic Justice and Peace Commission and NCCK. Between the three institutions there are 27000 monitors. A consortium of Western donors Is fundIng this exercise. There is plenty of excitement that these monitors will do a good job and reach a just verdict. The donors have emphasised their view that local monitors should do the monitoring (an expression of the sovereignty idea? Or is it because foreign monitors were such an embarrassment in 1 992?). lED also carried out monitoring of the voter registration and will release a report soon.

The three organisations are training three persons for each constituency to carry out the monitoring at that level. There will be regional coordinators to oversee monitorIng at the regional level. The monitors will monitor electIon campaigns as i.vell. The organisations have also set Out the criteria for monitoring: security of candidates of different parties during campaIgns; media access especially at the level of the presidential race; campaign time for different candidates and the role of the provincial administration in the process; and the help accorded to the illiterate and the disadvantaged during the polls.

re will be foreign monitors. NCCK has asked its foreign partners to send in monItors perate under its umbrella. Foreign missions (the Canadians and the British, hkL 126 for sure) have independently commissioned individuals to monitor the process. These individuals are already working on their tasks. i'vIost of the foreign missions in Kenya have asked their local employees to volunteer to monitor in their home areas. This is a wise request given the insecurity that is apparent. Amnesty has urged those foreign missions and organisations that are sending monitors to urge them to monitor human rights violations as well. Amnesty has since September launched a campaign on kenya, which focuses on the human. rights situation here. African members of Al are involved in this campaign while their foreign counterparts are urging their respective governments to act on the deteriorating human rights situation in Kenya. Al has commented usefully on the state of election preparedness and the constitutional reform process.

The Inter-Party Parliamentary Group (IPPG), in their reform package, touched on the electoral process, nomination of candidates, the campaign process, polling, electoral offences and election petitions. The group made no mention whatsoever of election monitoring. Kenya Human Rights Commission (KHRC), the Citizens Coaltin for Constitutional Change (4Cs) and Article 19, a northern NGO based in the CIK, have since lune 1997 been monitoring the Kenya Broadcasting Corporation (CKBC) and have so far issued two reports that confirm KBC's biased coverage of political issues. As we approach the general election, the tentative reports by the organisatfons ShOW the situation has not changed. KBC, which operates the only national radio station reaching over 80% of Kenyans, is effectively the propaganda weapon of the ruling party, KANU. These organfsations are also monItoring election violence and the level playing field. In the case of the latter task the focus has been to monitor seminars and court cases that are challenging aspects of free and fair elections. One of the protects the three groups are engaged in is to marshal evidence that confirms the rigging upfrorn of the general elections in favour of KANU. Whether these organisatiorts will have access to the Electoral Commission's computers and programmes remains to be seen. At the moment in Nairobi, there seems to be more of the viewing of the Philippine documentary, THE PEOPLE POWETh The Philippine Experience, than challenging the lectoral Commission to be transparent..

The National Convention Assembly (NCA) is not monitoring elections. NCA Is of the view that the elections will not be free, fair and peaceful. NCA's view is that the flawed elections will result in a certain victory for KANU. NCA has therefore said it would not accept the result of the election and the resultant KANU victory, in the event that another party or a coalition of parties come to power, NCA will still reject the results. NCA will also retect as illegitimate both parliament and the government that emerge out of the flawed elections. NCA will therefore agitate for a government of national unity, led by secular and religious civic sectors that will ensure a new constitution is in place and that a free, fair and peaceful general election is conducted by year 2000.

NCA is convinced that the flawed status quo in this country should never see the dawn of the next century. NCA's view is that it has the moral authority to warn Kenya of the dangers f flawed elections. NCA does not feel it is its duty to tell Keriyans 27 to do with their votes, if Kenya n sagree with NCA's message about thegerieral election, they will ask themselves what they are voting for. 1 -lopefuily they will consequently take the necessary action. NCA has decided not to demonise those political parties and individual Kenyans who participate in the elections NCA has issued the warning that the general election has been stolen by KANU and the message is being sent to all Kenyans. No Kenyan will say that NCA did not issue this warning.

NCA does not have the capacIty to disrupt elections, but it is still committed to its clarion call of NO REIORMS, NO ELECTIONS. NCA Is convinced that its opinion on the general election should be presented to the people. NCA knows that there is a government circular that has asked the security and administrative arms of government to ensure that NCA's.message does not get to the grassroots. NCA has condemned this action and has sought support from the religious, business, media and international communities. NCA is of the view that democracy means, among other things, the freedom for ideas and opinions to contend at all levels of our society. Since November 10, 1997, NCA has constituted itself into a Constituent Assembly and has started pursuing comprehensive reforms. Through the Constituent Assembly views of Kern)ans on constitutional reform will be sought. NCA has rejected the autocratic process of changing the constitution under the Constitution Revtew Commission Act. NCA is agitatIng for the democratic process of a national convention. The Constitution Review Commission Act gives the president and parliament powers, which amount to controlling a process that is supposed to reform those respective institutions.

As expected always the political parties will engage the services of their agents and supporters to monitor varIous aspects of the election. PrIncipally agents and supporters of political parties monitor access to the ballot, namely the casting of votes and the counting of votes openly and expeditiously. Given the lack of resources by many of the political parties this task is perhaps goIng to be taken up by the big and well- endowed parties. KANU leading the pack.

It is a truism that the citizens themselves are the best election monitors. The Kenyan citizenry is ill prepared for this task. It Is worth noting that there has been very ineffectIve civic education conducted over years. Civic education that is related to the general election is, in content, a campaign for political parties.

IV. Conclusion Election monitoring is yet again being done on a very narrow basis. It is being done around the events of campaigns, voting, counting of votes and the announcement of results. Training of monitors, which is a crash programme, is bound to be ineffective. Nothing is being done to monitor the Electoral Commission itself. The verdict on the elections will have to be assessed on the narrow and inadequate criteria that are going to be used by the monitors. hnitoring of elections is futile unless the monitors ask themselves what is to be the elections are not free and fair. With the huge numbers that NCCK, LED and

129 the Catholic Justice and Peace Commission are both committing to the monItoring of the general election, Kenyans must be told what the religious leaders in particular will do if the general election is not free, fair and peacefuL Kenyans will also expect a peremptory and immediate verdict from these organisations the moment the votIng is over. If the general elections are perceived not to be free and fair, as it is certain, a post-election crisis will grip the country. It has to be resolved. It is a fact that only NCA, KANU and the government have addressed this issue- NCA's position is given above. The position of the other two is to hold on to power and start repression if the challenge to both is feeble. The international community has already decided to invest in reforms after this election. The business community (and this includes the international community) hopes the election will diffuse the pressures and tensions that grip the country. I see this as a blatant rationalisation of a flawed electoral process.

What one hopes can be a positive aspect of the election monItoring process is if Kenyans start to realise that elections do not solve their socio-economic and cultural problems. No election verdict is going to guarantee their basic needs unless they struggle for them. If Kenyans start asking themselves what they are voting for and what they are monitoring elections for, then the general elections will have served some purpose.

The categorisation that has acquired popularity Is 'free, fair and peaceful" elections. Peace and security are fundamental pillars of a free and fair election. With instability, insecurity and natural disasters gripping the country, how inhuman can we get by prioritising elections beyond the welfare of the cItizens?

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129 -j"A The Spirit of Kamukunji SPEECH BY WILLY MUTUNGA NJRING THE LAUNCH OF THE SOOK, "CONSTITUTION MAKING FROM THE MlDLE: TRANSiTION POLiTICS IN KENYA, 1992-1997"

One portion of this book that I particularly enjoyed writing is the portion about Karnukuni the place, Kamukuni the democratic spirit, and Kamukuni the liberatory and revolutionary spirit (pages 19-171). Historically, the Karnukunjls grounds in Nairobi Eastlands became the arena of the struggle against the colonial rule. The grounds were, and still are, surrounded by African settlements including Sahati, Majengo, and Muthurwa, the homes of the colonial African worker. The grounds were our Soweto. They still are. .

After independence the political leadership decided that the politics of 'developmentalism' were not suited to be articulated In Kamukunji, surrounded as it was, and is, by slums, filth, dilapidated buildings and oppressive noise, Uhuru Park became the preferred venue for such discourse, an area surrounded by skyscrapers, a lake that was a source of cool breeze, dean toilet facilities for the leaders, well maintained facilities for sophisticated public address systems and a grand platform from where the leaders could watch the "natives sing and dance as was done in the colonial days. At Uhuru Park you could get away with dairuing that Kenya had developed. Oce cannot espouse the same sentiments at Kamukunji and get away with it

"Not Yet Llhuru" was a clarion call sounded at Kamukunjf when the argument was advanced that independence had been betrayed. The clarion call was made at Kamukuni by those then opposed to the Kenyatta-KANU regime. In response, the Kenyatta-KANU regime and its successor regme started authorizing the alienation of the Kamukuri grounds. The grounds are diminishing. Soon Kamukunji may not exist because the land grabbers are on the march. They are not only grabbing our public utilities and resources but they are killing the Uhuru spirit syrnbolised on the grounds of Kamukunji.

"Not (et Democracy has been a clarion call made at Kamukun. The Saba Saba struggles of 1990 took place there. The struggle for mu]ti-partism since 1991 has taken place there. The National Convention Assembly/National Convention Executive Council in 1997 agitated for the new constitution there. Other areas, venues and circumstances of agitation have been called K'arnukunji. When the university students call "a Karnukw-ili," it is always clear to the respective University administration, and indeed to the government, what the meeting is about.

"Kamukunji" represents resistance to any form of authoritarianisrn So there arc unjis" in homesteads, work places, schools, religious organisations, civil society 730 organisations and state institutions where authoritarianism and dictatorships seek to thrive. The spirit of Kamukuni is gradually becoming prevalent in the Kenyan society and that is something to live and hope for. Lihuru and Democracy for whom is a question that has been asked at Kamukunji when the green formations lit fires, confronted the police and protected the pro-democracy movement. It is a question that is being asked in the parallel con stituti on-maki ng processes that has been going on unnoticed and unacknowledged by the status quo. It is a question that will inevitably be asked when the constitution-making processes from the above and from the middle confront those from below.

For Kenya the spirit of Kamukunji is the spirit of survival. Kamukunji lives on. For the oppressed1 exploited and harassed, it keeps on erupting to give hope to democracy, Uhuru and survival.

I thank Your Excellency Madame Graca Machel for being here to launch this book, Constitution Making from the Middle: Transition Politics in Kenya, 1992-997." In the spirit of Karnukunji, I present this book to you, Your Excellency Graca M41che!1 In your capacity as a Freedom Fighter and our role model in the national, regional, continental and global civil society. Similarly., in the SpirIt of Kaniukuni. I beg of you to deliver this other copy to Africa's leading Spirit in Democracy and Liberation, His Excellency President Nelson Mandela.

131 Kanu Elections in a Rural Location WILLY MUTUNGA

When it was announced that there would be grassroots elections in K!tui, I decided to go there and monitor the elections in my own locatIon. I come from Nzambani location in Kitui central constituency. This constituency is an opposition stronghold. My MP is the dynamIc Charity Ngilu. KANLI has also its share of supporters who are always loud, arrogant, aggressive, violent, abusive. antipeople. All these attributes are a reflection of the supporters feeling they have captured state power and are indeed members of the ruling party The supporters of the opposition in Kitui central (and the majority are Dl' darnu kamtli) stand up for their rights andarenever cowed by KANU supporters it has taken a very powerful and pro-people MP to reInforce the courage of the people in this constituency in standing up against the wrath of KANU supporters and a partisan administration. Hon. Ngilu has led by example. She tas been the first victim of these KANIJ attributes, but she has always resisted them.

In the location contest my uncle was running for the chair. I have a cousin, who after flittering with the opposition, has found political solace in the bosom of the ruling party. In my village KANU supporters are well known. They are respected for their courage and the villagers always get to hear more of them when there is food relief. They always use food relief to get from the villagers empty pledges of support for KANU. Invariably they are known to get away with selling food relief. Both of my relatives were involved in the KANU elections. My uncle had made it clear that he and his fellow office bearers, if elected, would vote for Hon. Nyiva Mweridwa for the chair of KANU, Kitui district. His opponent, the secretary of KNUT, kitui branch, was in the camp of Hon. George Ndotto. Hon. Ndotto was perhaps scared of losing to Hon. Mwendwa. These, therefore, were the scenarios the night before the election.

I cannot say for certain that all the people who queued in the locational election were all KANU members. It was clear to all present that my uncle was winning. He had 459 supporters in his camp while his opponent had 35. 1 could see the joy of victory on his face and on those of his team. The presiding officer, a respected pastor, was in charge for a while then disappeared. Everybody waited for the final count and the declaration of the victors. It came as a shock to my uncle, his team and his supporters when they g came to know, before the election was over, that it had been announced in Kitui that he and his team had lost! What the presiding officer, the good pastor, dId was to submit to the district headquarters the list of the names of the other contesting camp as vIctors.

It is not easy to explain the reaction of the KANU faithful to this act of rigging of the = lion: disgust, disbelief, blaming the two KANU camps, curses, anger, threats to ieience, abuse, hope that this action will not go unpunished. suggestions of appeal KANU headquarters, boycotts, march on district headquarters, suggestions of

132 lynching the good pastor. One could go on and on. For once KANU supporters had been subdued; not by any other political party or force, but by their own party!

The district election was not much of a fuss. When all delegates gathered for the electIon it was clear to everyone present that Hon. Nyiva Mwendwa and her team had the support of most of the delegates. She had on her side delegates from three of the four constituencies. Her rival Hon. Ndotto had the support of delegates from Kitui central. If his support was based on the same tactics that had been deployed in my location, then Hon. Ndotto had his match in Hon. NyIva Mwendwa. Hon. Ndottos camp asked for a p011 by secret ballot, which Horn Ntimama turned down. They then marched out in disgust. They did not want to witness what was going to be a humiliating defeat for them. It was not Hon. Ndotto who threatened to take his supporters to the opposition. It was one of his diehard supporters who directly addressed I -Ion. Ntirnama on that point. I was intrigued about the request for a secret ballot and Its refusal. I understand the KANU constitutIon allows either a poii by secret ballot or in the open, either by queuing or by open show of hands. I have not confirmed this yet. Did Hon. Ndotto think he had a chance in a secret ballot? Or was he looking for an exhise in an election he clearly could see he had lost? If delegates are compromIsed, whoever has compromised them would want them to vote in the open. Secret ballot may bring unanticipated results. The night before the district election, rumour had It that Hon. Ntimarna was heard saying that mama," meaning Hon. Nyiva Mwendwa, had to win. Those who said they heard the minister say so are KANU supporters, but they may well be Hon. Ndotto's supporters. Both my uncle and my cousin had ultimately the last laugh! Their camp won the district election.

One last observation of these elections. Everything was done in the full view of the state's administrative and security apparatuses. "This Is a party matter, so we just observe seemed to be the attitude of these apparatuses. I could see distinct dIsdain for the process in the faces of some of these bureaucrats. Their faces were open books, but they never uttered a word.

Very definite questions emerge from this experience. Granted our project in the CItizens Coalition for Constitutional Change I will be forgiven if I draw my conclusions from that project's perspectives:

• Does KANU have a culture of accepting defeat in a political competition? In my location the losers ended up the winners while at the district level the losers dId not accept defeat. Has KANU internalised the culture of victory at all costs? Can KANU ever accept defeat in a political competition?

• Why and how do we expect KANU to conduct free and fair elections when It cannot guarantee such electIons to its supporters, some of whom are KANU dmu kamili?

• Is the opposition any different from KANU? Have the opposItion partIes conduct elections in a different fashion?

133 • is there any internal democracy practiced by the political parties in this country?

• Are political parties so sure of support (because of ethnicity, culture of fear and lack of issue-oriented politics to name but a few examples) that they can always take their supporters for granted and blatantly vIolate their democratIc rights?

• Does not this experience show how hopeless the contents of the PoliticaLparties aili are? Rather than address the issue of democracy, openness and transparency in political parties, and thereby protect party members from the party leadership, the bill aims at state control of party po(itics

• Do we realise the monumental tasks facing those who want to work and those who are working at the grassroots? What are their strategies? Are these strategies geared at radically changing the status quo at the grassroots? Are these strategies not just reinforcing a culture of dependence and insecurity?

• Is there any need of proof that the administrative and security apparatuses of the government are partisan? They condoned what was happening. Is It becaus# of their fear of the ruling party? Shall we ever have an administration and security system that will slide with the people on any issue?

• Does anybody doubt the call for a constitutional review before the general election? 1 got the distinct impression from my KANU relatives that they now understand what is a free and fair election!

• Why is KANU headquarters not hearing the grievances of its supporters on the elections? Is this fair?

• When are Kenyans goIng to take a stand on the dictatorship of political partIes?

• Is It not time for the organIsed sectors of eMI society ad the private sector to define and refine the concept of non-partisanship if these sectors believe in natIonal Interest and national good?

I have no answers to these questions. it is up to Kenyans to come up with the answers. what is clear to me is the need to brainstorm these issues as the election fever grips us all. There is no doubt that 1996 and 1997 are going to be year of Intense debate on constitutional and legal reform and in particular electoral reform. What Is done about these issues will determine our country's stability..

134 F. Constitutional Reform In Response to President Moi's Statement on Constitutional Review WILLY MUTUNGA

The Presidenrs position on constitutional review, which he let be known to the nation on Moi day, did not come to the Citizens Coalition for ConstItutional Change (4Cs) as a surprise. The constitution as it stands favours President Mois continued rule and subsequently his party's stay in power. That is the meanmg of the rationalizations for inaction that we have heard again and again: "there is no constitutional crisis in Kenya"; 'there is no time to carry out an inclusive and participatory constItutional process before I 997'; "constitution reform is a serious business which cannot be undertaken by a group in Majengo"; "constitutional reform is aimed at causing chaos in Kenya." One can go on and on. So what is new in President MoPs statement.

It is the view of the 4Cs that the President has given his personal view, which does not represent the views of the Kenyan people, the government and the party in power. Who did he consult on this issue? Was there a meeting of the ruling party to discuss the issue? Was there a cabinet meeting that discussed this issue? It is clear that the Kenyan people have not been consulted. Personal views of the President are welcome and they should be taken as such.

One of the key issues that a new constitution will have to address is the powers of the President. These powers must be democratized and decentralized. It is wrong for one Kenyan to make decisions on behalf of thirty million Kenyans without consulting them. It is even more wrong to treat them as political children who have no voice and who can be represented by him/her on all issues. It is the hope of the 4Cs that President Mol will be the last Kenvan President to wield such enormous and unrestrained powers.

In this era of democratization, transparency and good governance (which dIscourses our government has accepted and takes pride in announcing them from the rooftops), is not the constitutional issue so crucial now that the people ought to have a say? The 4Cs have challenged the President again and again to put this issue to a referendum so that it is settled once and for all.

it is clear to the 4Cs that the next general election is already rigged and it will not therefore, be free and fair, it is also the view of the 4Cs that minimal constitutional and legal reform need time to be made use of and to have any political effect. It is important, therefore, to discuss whether or not we should not address fundamental constitutional reform. What President Moi is telling us is that we allow him to come ck to power on a flawed election and then he will accede to our demands on 6 ~nstitutional reform. What is that promise worth?

136 President Moi has broken all his promIses on constitutional reform. What is more, he has never bothered to explain to the Kenyan people why he has reneged in these promises to the nation. On New Year's Eve 1995, President Mol promised to have the constitutional reform undertaken by the foreIgn experts. When he found that the 4Cs has already consulted foreign experts on the proposal for model constitution, he did not even take up the offer by the foreign missions here that were ready to assist in the endeavour. Later, in juhe 1995, he said that his constitutional project only envisaged minor reforms, which he did not name. By August 1996, the President was saying that there was no constitutional crisis in Kenya. This has been his position all along except that sometime in july 1996 he said that churches will be consulted in constitutional reform. The President has continually been reacting to the various civic initiatives and political ones calling for constitutional reform. He has not had any initiative in this issue and this explains the broken promIses. With this kind of record, a catalogue of broken promises, why should Kenyans accept the President's new promise? Several initIatives on constitutional reforms have bent over backwards to give the president the benefit of the doubt by stating what the minor reforms re (and some are already having meetings to prioritize these minor reforms) and the result has been the same broken promises. It is the view of the 4Cs that this new promise cannot he accepted. The 4Cs is happy to note that the majority of the opposition parties as well as the sectors of the civil society have rejected this promIse.

The process of a national convention has started and the 4Cs will collaborate with other stakeholders. The issue of what to do with the PresIdent's stand is now a burning issue that has to be resolved. The 4Cs is convinced that Kenyans will not let this issue go away. It has just matured and it now cries for practical and pragmatic solutions.

137 4 Kenya's Regional Trade and Constitutional Reform WILLY MUTUNGA

I read with interest your lead story in the current edition of the Chronicle (Week ending May 2, 1 997) "Kenya may lose K'shs 40b trade". The truc figures would place the potential loss at Kshs, 200 billion. I want to address some aspects of the root cause of this loss and relate it to constitutional reform, 1 do not wish to repeat Musyoka Wa Kyendo's able analysis.

The constitutional reform project has received no support from the business community. The reasons are clear, It is a protect that is seen as anti-governnient and it is not in the interest of business to take such a bald risk as supporting the protect. The project has also not aggressIvely wooed the business community. Except for some meetings with the Kenya Association of Manufacturers, the Federation of Kenya Employers and a token representation of the Kenyan business community at the first plenary of the National Convention at Limuru on April 3-6, 1997, not much has been done Yet there is no denying the fact that the business community should be at the forefront of the constitutional project.

it is very crucial that the vision of the business community in Kenya as it relates to the economy, governance, ethics, social and cultural aspects of the nation should be reflected in the new constitution. It is clear to me that some of the root causes of the danger that the Chronicle analysed have to do with issues of governance: the politicaJ bullying; the non-existence of coherent and transparent foreIgn policy to deal with the issue. what has our Commerce and Industry ministry done to protect the business community? Have we cleaned our licencing procedures that are fraught with corruption and which in turn are reflected in what our businesses are doing in the regional trade? F-low strong is the poIitcal lobby of the decent business community vis-à-vis that of the politically correct business community, which seems to be the mainstay of graft and corruption? What is the indigenous community doing to project a national economy in the New World Order, which dictates against such economies? These are but some of the questions on governance.

What has made the political leadership immune to any suggestions on reforms Is that the powerful stakeholders of the reforms, such as the business community, still embrace the politics of running with the hare and hunting with the hounds. The business tommuriity must take a stand on the constitutional project because therein lies its survival. The fashioning of the new social order has to reflect the kind of economy we t.We have our differences on this issue, but let us debate these differences. Lot know a lot about economics, business and all. 1 can, however, suggest here 138 and now, some politico-legal minimal or fad Illative reforms that can assist the business community, both big and small:

The centralisation of licensing so that only Kenya Revenue Authority can deal with the issue and license businesses on the basis of their turnover;

• The formation of an independent investigative unit that is managed by the business community and facilitated by the state to deal with graft and corruption;

• The repeal of all laws and bylaws that inhibit the spirit of business philanthropy, self-help and self-relIance;

• The forrriation of a reform lobby by the business community, which will represent its interests directly in the reform process;

• The end of white/brown/yellow/b]ackmailing of decent business communities by both the government and the politIcally correct domestic and international business community; and

• The repeal of the laws and administrative procedures that inhibit Kenyas role in the regional and continental trade.

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139 Ad Should the Litmus Test for the Merger Be Ufungamuno II? WILLY MUTUNGA

The constitution-making project in Kenya has been undertaken by fits and starts, more fits than starts. Yet this is a project that will never go away because it has become an entry-point to the country's survival.

The Kenya Human Rights Commission, as a stakeholder of the Ufungamano Initiative, is of the view that the Initiative is bigger than the stakeholders and the religious leaders who have led it. The Injtiative was always an expression of the aspIrations of some social groups within the Kenyan society that can claim a broad popular mandate. In the wake of the merger, one crucial task surely must be to resurrect and reconst4ute the Initiative. The Commission demands of the Steering Council, now that the merger agreement is in another forum, to reconvene the initiative as a powerful citizen's lobby that will monitor and guarantee the integrity of the constitutional process. The Ufungarriaria Initiative is the mother of all citizen lobby initiatives and it must not be killed. The merger is the cake we have eaten, the lobby Is the cake we must have.

There are conditions that must be satisfied up-front as- crucial tests of the merger. The Commission insists on seeing the goodwIll of the government. We can test this goodwill if the Kenyan government in the next month, for example, guarantees and respects the human rights of the Kenyan people. Shall we have illegal and savage disruptions of lawful meetings? what about the security of the people and other freedoms? Without an environment of peace and security1 the merger will die. Without the citizens enjoying theIr freedoms and in particular the freedoms of the press, speech, assembly, participation, association, movement, the right to organise and of security, then the merger is as good as dead.

There is wisdom in the saying that the leopard never changes Its spots. There is need for caution, scepticism and suspicion of the Moi-KANU regime that has been the stumbling block to the constitution-making project. Kenyans may as well start thinking of how to make an interim constitution, given the short time available for the process at the moment. The current time frame for constitution making will rush the process. In such an interim constitution the focus may well be on creating a level electoral field1 succession and principles on which a comprehensive constitution of Kenya must be based.

The Kenya Human Rights Commission believes that there now exists a national coinsus that requires President Moi, as a matter of law and human decency.. to fully leave office and-exit from national politics at the conclusion of his term in if not earlier If President Moi is opposed to this consensus then the message he h 140 is giving Kenyans is that he is ready to oversee the destruction of the country. We hope that President Mol after 47 years in public office - the last 24 as President - would not like to leave such a legacy.

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141 is giving Kenyans is that he Is ready to oversee the destructIon of the country.. We hope that President Moi after 47 years in public office the last 24 as President - would not like to leave such a legacy.

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41 4 The Electoral Playing Field Must Be Level before the General Election WILLY MUTUNGA

The National Convention Planning Committee (NCPC) wishes all Kenyans a happy, peaceful and a constitutional reform year.

The NCPC is happy to announce that the first Plenary of the National Convention will indeed take place in the latter part of March 1997. A specific date will be announced after consultations are concluded with the various interested parties. A consensus on the date and the logistics of the said plenary will be reached.

The first plenary of the National Convention has a specific agenda: the implementation of the minimal constitutional, legal and administrative reforms necessary beforehe next general elections. The NCPC is convinced that the general elections will not be free, fair and peaceful if these minimal reforms are not implemented.. These reforms will guarantee a level playIng field, which the general election should reflect, in the current competitive multi-party politics. The first plenary represents yet another stage in a process that will lead to a participatory all-inclusive national convention which will produce a draft constitution for Kenya. The NCPC, it will be recalled, launched the process by presenting a concept paper on the national convention on September 28, 1996. Thereafter, a retreat was held on November 15, 1996 to discuss the content of the agenda of the First Plenary. Three other pleraries are planned for this year.

The opposition political parties (except Kenya Social Congress and Kenya National Congress) have ratified the list of minimal constitutional legal and administrative reforms that has been drawn by the NCCK, Episcopal Conference of the Catholic church, 4Cs, National Convention Planning Committee (NCPC) and various individual Kenyans. There is therefore a consensus on these reforms by the various sectors of civil society and opposition political parties. Persuading Kenya African National Union (KANU) to support this process has never relented, The NCPC has not given up hope that KANLI will participate in the convention. The NCPC will enlist the cooperation of the Kenyan people to persuade the ruling party that it is in the national interest to conduct a general election that is free fair and peaceful. Constitutional reform is not an agenda for the debate that will enable all Kenyans to discuss what ails this country and to find solutions.

Constitutional reforms are not about the electoral process only. The NCPC realizes that all Kenyans have a vested interest in the general election and it is on that basis = specific reforms to level the electoral field are being sought. The NCPC is convinced at once these reforms are iii place, a fundamental and comprehensive overhaul of nstttution Es necessary. These reforms will facilitate that process.

hi 142 The NCPC calls upon all Kenyans not to give up the struggle for these minimal reforms before the general election. We should collectively persist in prayer, dIalogue and persuaston to ensure that the gene[at election i tree, fair and peacefuL

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143 Is Majimbo Federalism? Constitutional Debate in a Tribal Shark-Tank PETER KAGWANJA AND WILLY MUTUNGA

The meanrng and place of "Majimbo in the unfolding constitution.l order" is one of the unresolved debates in Kenya. Majimboism was effectively re-launched into the centre-stage of public discourse in a low-key seminar held in Nairobi on May 11 this year under the provocative theme: Schools of thought on mi4irnbo in Kenya. Cabinet ministers, MPs, donor representatives, academics and activists, representing a wIde spectrum of ideological shades, attended the seminar. The seminar was convened jointly by the Association of Local Government Authorities (ALGAK) and Friederich Ebert Stiftung Foundation (FES).

The Majimbo debate has also been boosted by Shariff Nassir, a Minister of State in the Office of the President. Honourable Nassir was participating in the KTN call-in sessIon, Third OpInion (10105101), where he called for Kenya's return to mainibo to ensure equitable distribution of resources" among ethnic groups after MoPs exit from power.

The rekindled quest for majimbo conforms to the history of constitutIonal bargaining in Kenya that has invariably been accompanied by clamours for "maimbo!sm" Nonetheless, the connection between majimboism (a Kiswahili word which means admfnistrative units' or 'regions') and classical federalism, as it has evolved in such western societies as the United States of America or Germ any is blurry.

The fogginess of the majimbo debate was the central concern of the lead paper during the ALGAK seminar: Constitution-Making and Local Governance in Kenya: Revisiting the Majimbo Debate.

The acrimony that has shrouded majimboism since independence asIde, there is little evidence that prompters of the project have given it serious thought or set out its theoretical and practical benchmarks Instead, underwriters of rnajimboisrn have deployed it to counteract ethnic rivals in the elbowing and jostling for power among the fractions and factions of the Kenyan political elite. As a result, there is not one 15 school of majimbo but many, some lethal, others benign.

On the one end of the Majimbo pendulum are the proponents of ethnically homogeneous regional slates. The late Peter Habenga Okorido is the most eloquent defender of this model of majimboIsm. In a 390-page book: A Commentary on the Constitution of Kenya,, Okondo echoed the classical idea that the diffusion of power rtyranny and evinced that each ethnic group is entitled to autonomy. He clarion call that Kenyans and, indeed, all Africans to return to their tribal

144 hearth because they have a "natural allegiance to trIbe" and can only feel secure and at home in autonomous ethnic states.

Upon these premises Okondo mooted the idea of "the Federal Republics of Kenya" with "Tribal States' as its building blocks. He dismissed the prevailing constitutIonal order as an artificial creation of British colonial authorities, and hailed tribal states as the anchors of true nationalism and the best guarantee for natIonal unity.

The main flaw of Okondo's model is that it conceived "the tribe" as a static and pure ancient category that has remained unchanged since Adam was banished from his

4 tribal' homeland of Eden. Closing his eyes to the role of race, gender, religion, class and generation as powerful social identities, it elevates the "tribe" as the sole identity upon which society is polarised. It also is oblivious of the fact that one effect of the nation-building project in Kenya has been the rise of a heterogeneous society consisting of multipleethnic communities. The processes of urban isation, inter-ethnic marriages, and desegregated schools are rapidly producing a multiethnic, multiracial and multicultural society.

In an effort to universalize this model, Okondo likens his version of federalism to the states in the United States of America. He argues that the American's dual allegiance to their home states first and only second to the federal government has strengthened the United States and will make Kenya stronger, Okondo skates on thin ice because American states are not based on homogeneous ethnic or racial groups; in fact, American states are multicultural and multiracial and movements to the contrary are actively resisted. The strength of the model is that it does not advocate ethnic cleansing as a means of creating 'pure tribal states.'

The Minister of State in the Office of the President, William Ole Ntirnama, while ratifying the 'tribal states' insists that "majimboism means federalism." He invokes the International widespread character of federalism to argue that 'most people of the world have chosen federalism.. .as the only system that can ensure unity and stability." He gives the examples of Canada, Germany, India, Austria, South AfrIca, Ethiopia and Nigeria, which have gone federal (see Economic Review 3013/98). In a paper: The Place of Local Govermnent in a Unitary or Federal Government delivered at the ALGAK seminar, he lauded majimboism as a system "impregnated with an array of checks and balances-. .to shelter minorities and other vulnerable groups from rnajoritarian avalanche." in the same breath he extolled the use of ethnic force to "liberate" the smaller groups from the tyranny of the majority. Conceived this way, inajimboism has given federalism a bad name- Not surprisingly, to many Kenyans and the worId it is viewed as a war cry for ethnic cleansIng in multiethnic regions in the Rift Valley., 22 Nyanza, Western and Coast provinces.

On the extreme end of the majimbo pendulum are those sanctioning a multiethnic federal system based on ethnic co-operation rather than exclusion. The Coast-based Shirikisho Party of Kenya (SPK) is the spearhead of the multiethnic idea of federali "Federalism is the devolution of power to the people, not discrimination against

145 because of their tribes or race," said Mwagomba Mwapeu, SPK's candidate for Matuga Constituency durthg the 1997 elections. This comes hand on the heel of the bloody ethnic deansing of Wabara or Wakirfenge (as the up-country people are collectively called at the Coast) in 1997.

Wary that Kenya will turn into an inferno of inter-ethnic wars after Moi's relinquishment of power, some academics have begun examining the viability of a multIethnic form of majimboism. The merits of creating a federal system of government comprised of ethnically heterogeneous states," writes Drew Jackson, "outweigh the merits of a system based on homogeneity.

Between the two extremes are those crusading for Kenya's return to the defunct malimbo system of the 1 960s. The Nairobi-based pro-rnajimbo lobby group, 'Chania Cha Majimbo (CCM)" (the Majimbo Party) is the main proponeilt of this position. Arguing that the malimbo constitution of the 1 963 hiatus was never gIven a chance, the lobby endorses its restoration, it divides Kenya into 11 regions "for indigenous people": the Northern .Corridor, Western Region, Nyanza, Southern, Rift Re*ion, Nairobi, Central Eastern. Coast and Frontier Region.

While the lobby sticks to the ethnic logic of majimboism, it recognises the heterogeneous nature of these regions. Its mode] embraces a three-tier government consisting of Central, Regional and Local Governments at a time when the Kenyan economy is ailing. It fairs to transcend the nostalgia for the 1963 constitution and analyse the polItical and economic reasons behind its collapse. The final position is promulgated espouse that of ALGAK promulgates a mid-house model between the federal and unllary systems. It proposes a decentralised and dernocratised central government, strong institutions and independent and autonomous local governments. Further, it identifies the district as the viable smallest unit of legislative and executive power, which can protect both ethnic majorities and minorities within it. A democratic nexus between these districts and the central government is established and guaranteed through a second chamber. Such a chamber can protect minorities at the centre, arrest negative ethnicity and the violation of their rights. Moreover, other social identities such as races, gender, and class interests can forestall the polarisation of the nation along the ethnic fault-line. Other layers of governance, such as regional governments, provincial administration and the ministry of local government that viriate the autonomy, resources and the protection of local governments should also be abolished. ALGAK abhors ethnic cleansing and genocide, which has ch.aracterised the majimbo debate and devolution of power from the central to local authorities.

The reIfication of the "tribe" in the articulation of Majimbo fails to map out the place 19 of nearly 200.000 Kenyans of Asian. European and Arab descent. Over 50 percent of these live in urban areas while the rest areto be found in rural communities and firni heLtrenld is to ignore these racial categories altogether or to lump them together with es." In the publication, The Federalist: The Voice of Reison, Honourable Shariff

146 Nasir talks of "us who come from the smaller tribes," thus obscuring the place of Kenyans of Arab descent in this tribal constellation (1 999:2).

Thus the mairnbo debate has finally come home to roost within this hotchpotch of a political canvas. The debate occurs against the backdrop of passage of the Constitution of Kenya Review (Amendment) Bill that legalized part of the merger agreements between the Ufungamano initiative and the lYasLi] Ghai Commission on May 8, 2001. What has neverbecome succinctly clear is whether Majimboism is the same as federalism.

It was the central theme of the Lancaster House Constitutional Conference in 1 962, ahead of Kenya's independence, and has jinxed the constitutional reform process in the multi-party era. As it has been observed, its proponents are convinced that rnajimboisrri is federalism, but its critics contend that the system is as far from the known theory and practice of federalism as the earth Is from the heavens. This reveals a serious -gap in the knowledge of a system that has stalked our political debates for almost four decades.

Andrew Morton, in his highly saccharine biography of President Daniel arp Mol (Moi The Making of an African Statesman 1998) is all praises for the majimbo system of the 1960s. He lauds it as "a system of checks and balances designed to safeguard the integrity of small tribes which were in danger of being overwhelmed by larger tribes, particularly the Kikuyu" (1998:108), However, this tells us little about the inner trapping of the rnajimbo constitution and why it faded away so quickly like the morning mist on a sunny morning. hldeed, not all majimbo advocates are nostalgic of the 1963 maimbo edifice. The late Okondo, KADU legislator in the sixties, dismissed the majimbo constitution as "a clumsy compromise between the federal Westminster model and the unitary English system. 1' Drew Jackson argues in the paper, The Ma/imboist Movement Oevolution and the Protection of Minority Rights in Multiethnic Kenya (2000:13). that: "The product of hasty negotiations between centrist and federalist forces in the looming face of self- rule, the Majimbo Constitution fell short of creating a truly federalist state comprised of multiple sub-state sovereigns."

In his powerful article Independence and Safeguards in Kenya published in a 1967 issue of the then wideR' read East African Law Journal, Professor Yash Ghai observed that: "[T]here is littJe evidence of clear or coherent thought behind [the majimbo] plans."

The effect is that this saddled the nascent nation with a ramshackle of a hastily and - badly thought Out constitution that was difficult to finance and implement. Ghai and McAuslan tell us that "The regional governments ... were clumsy and unwieldy, there was a wide dispersion of authority, and no clear lines of responsibility"

Eventually, the majimbo experiment neither pleased its proponents in KAIJU nor did rg it win its opponents in KANU. The KADU President, Ronald Ngala, scoffed at It as a "breach of faith" (Sunday Times, November, 1963). The brilliant KANU General, and then Minister for Constitutional Affairs, Tom Mboya, taunted Aft 147 NasIr talks of "us who come from the smaller tribes" thus obscuring the place of Kenyans of Arab descent in this trIbal constellation (999:2).

Thus the majInibo debate has finally come home to roost within this hotchpotch of a political canvas. The debate occurs against the backdrop of passage of the Constitution of Kenya Review (Amendment) Bill that legalized part of the merger agreements between the Ufunganiano initiative and the [Yash] Ghai Commission on May 8, 2001. What has never become succinctly clear is whether Majimboism is the same as federalism.

It was the central theme of the Lancaster House ConstitutionaL Conference in 1962, ahead of Kenya's independence, and has jinxed the constItutional reform process in the multi-party era. As it has been observed, its proponents are convinced that mafimboism is federalism, but its critics contend that the system is as far from the known theory and practice of federalism as the earth is from the heavens. This reveals a seriousgap in the knowledge of a system that has stalked our political debates for almost four decades.

Andrew Morton, in his highly saccharine biography of President Daniel arap Mol (Mo!: The Making of an African Statesman 1998) is all praises for the majinibo system of the I .óOs. He lauds it as "a system of checks and balances designed to safeguard the integrity of small tribes which were in danger of being overwhelmed by larger tribes, particularlythe Kikuyu" 0 998: 108). However, thistells us little abouttheinnertrapping of the majimbo constitution and why it faded away so quickly like the morning mist on a sunny morning.

Indeed, not all majimbo advocates are nostalgic of the 1963 majimbo edifice. The late Okondo, KADU legislator in the sixties, dismissed the majimbo constitution as "a clumsy compromise between the federal Westminster model and the unitary English system." Drew jackson argues in the paper, The Maflmboist Movement: Devolution and the Protection of Minority Rights in Multiethnic Kenya (2000:13), that: "The product of hasty negotiations between centrist and federalist force.s in the looming face of self- rule, the Majimbo Constitution fell short of creating a truly federalist state comprised of multiple sub-state sovereigns. 11 in his powerful article Independence and Safeguards in Kenya published in a 1967 issue of the then widely read East African Law Journal, Professor Yash Ghai observed that: "IT]here is little evidence of clear or coherent thought behind [the majimbo] plans."

The effect is that this saddled the nascent nation with a ramshackle of a hastily and badly thought out constitution that was difficult to finance and implement. Ghai and McAuslan tell us that "The regional governments ... were clumsy and unwieldy, there was a wide dispersion of authority, and no clear lines of responsibility" at

Eventually, the majimbo experiment neither pleased its proponents in KADU nor did it win its opponents in KANU. The KADU President, Ronald Ngala, scoffed at it as A "breach of faith" (Sunday Times, November, 1963). The brilliant KANU Secre General, and then Minister for Constitutional Affairs, Tom Mboya, taunte 147 experiment ... that.. .lwas full of] unworkable and unfair provisIons" (East African Standard, May 15, 1963).

In his book, Not Yet Lihuru, Jaramogi Odinga observed that 'the Imaimbo] constitution was based on artificially engendered fears, for it is obvious that the European settlers and the British Government helped KADU and accorded it an importance out of proportion to its popular support.'

The system was not only expensive in terms of money and personnel, but also prevented the growth of nationhood and retarded economic development. It was "too legalistic and cumbersome, literally requiring a battery of legal experts and clerks at the Centre and Regions to interpret the dos and the donts hidden behind the myriad of legally worded clauses if it was ever to work," writes Odinga.

The failure of majimbo is attributed to the high-handedness and opposition by Kenyatta's Kikuyu-dominated oligarchy. While most of former KADU leaders seized and consolidated the reigns of power after Kenyatta during the entire 1978- j 990 period, not a single constItutional amendment to re-Introduce majimboism reached the floor of parliament. Asked why this was the case by his audience at the ALGAK seminar, 1-tonourable William Ole Ntirnama simply quipped: "Power is sweet,"

Is Majimbo the same as federalism as practised in Germany, the United States, Canada, Australia, Switzerland, IndIa and Nigeria? As a system of devolving state power horizontally, federalism is viewed as accommodating and inclusive of diverse cultures and identities It, therefore, Suits large countries or those with competing racial or religious identIty problems and is widely prescribed for ethnIcally divided societies in Africa.

Federalism's greatest strength is that it provides an ideal local nursery where leadership skills and styles are tried out before being transplanted to the national level. It is said that Bill Clinton was earmarked as a national leader after his economic miracle in the tiny Arkansas at a time when America needed an able economic reformer; and George W. Bush, it is said, because of his "compassionate conservatism," strong moral leadership and great skills in forging unity of diverse cultural and racial groups and interests in Texas.. You may not believe this but most Americans do.

FederalIsm promotes localism, ethnic and racial xenophobia and undermines the sense of nationhood. Unsurprising the United States and Nigeria are living survivors of debilitating separatist wars between their regIons; india, despite its federal miracle still bleeds from secessionist movements. The introduction of ethnic-based regionalIsm in post-Mengistu Ethiopia has fuelled the conflict over the proposed Oromia state by members of the Oromo ethnic population. By the same token, the crusade for malt mboism in the sixties opened the Pandora's Box of ethnic irreclentism. particularly = by Kenyan Somalis in North Eastern Province and the Coast.

ralism's main weakness is that it is a very expensive system that duplicates services ce holders at the regional and federal levels. it lacks uniform policies on such 148 issues of national concern as laws regulating marriages, divorce, abortions, liquor, voting rights and public education. Rather than ensuring economic equity, as many proponents of majimboism assume, it sets those regions, states or cantons with a weak market-base, capital, and resources down the spiral of economic decline. it subjects local governments to double subordination-by the central and regional governments-and the citizens to triple taxation. At a time when the country's economy is on its knees, the feasibility of a weIl-ftnanced transition is highly doubtful.

The pro-mafimbo crowd is a coat of many colours knit together by the common fear of the effects of liberal democracy. Thus niajimboism is conceived as an antidote to the excesses of liberal democracy, as a system that gives undue political muscle to numerically larger ethnic groups and threatened ethnIc minorities with perpetual exclusion from power. Others have drawn out their swords against the unitary state, disowning it as a relic of colonial autocracy that privileged ethnic malorities and trampled on the cultural, social and economic rights of ethnic minorities.

Majimboism has its sinister ring and a shade of blood, in many a Kenyan md it Is twined with what both national and international human rights watchdogs have unmasked as politically-sponsored ethnic cleansing, indeed genocide, in the Rift Valley, Western, Nyanza and Coast provinces. Politically inspired violence killed and displaced thousands of Kenyans from their homes, destroyed property, brought local economies to their knees, made children destitute and assaulted citizenship and nationhood. Critics argue that majimboism Is a prized arrow in the quiver of the ruling elite to secure its place in the sun in the face of mounting local and international pressure for political change and economic transparency.

The unitary system, arguably, represented the Cold War reality when Western governments and donors backed such Strongmen and Big Men" like Mobutu, Kenyatta, Banda, Haile Selassie and Siad Barre, to mention a few, lock stock and barrel. They gave a pride of place to "Strongmen and Big Men" and unitary states whether of the military or civilian types as the only guarantee of border amid chaos" and bulwark against communist take-over.

Hence, the resurgence of the federal idea is viewed as a legitimate child of globalisation. it has at once promoted global integration, which is captured by the metaphor of a 'global village', and fuelled tribal and racial sensibilities.

The clamour for majimboism comes at a time when Kenya is spearheading a closer union with Uganda and Tanzania reminiscent of the defunct East African Federation I and when the African continent is transforming itself into a kind of federal union, along the lines of the European Union. This challenges the wisdom of shifting to a federal structure internally.

Unitary and federal systems alike are as old as the hills- There Is nothing untoward in Kenya adopting any variant of federalism. But a form of federalism that ignores t heterogeneous nature of Kenyan society, thrives on artificial ethnic fears and '

749 ethnic cleansing can only undermine citizenship, human rights and nationhood. This is not federalism.

II1IIIIrIL ISO Does the Kenya Government Understand Its Role in Constitution Making? MUGAMBI KIAI AND WILIY MUTUNGA

We are said to be a nation with shocking memories! It is said that this is the reason we quickly forget omissions and commissions that In other countries would send the government packing. The loosely called political class In Kenya knows that the best politics to get Kenyans to absolve it from any responsibility is the politics of "wait and see." One can give a catalogue of omissions and commissions that Kenyans have long forgotten and for which they have forgiven the political class. While the late Mzee Jomo Kenyatta urged us to forgive, but not to forget, we have graduated to a new philosophy of both forgiving and forgetting!

One can trace the recent calls for a new constitution to the calls for rnulti-partism. The position of the Kenyan government and the ruling party then was that there was no constitutional crisis in Kenya. Repealing section 2A of the constitution was seen as sufficient to usher the country into a culture of constitutionalism and democracy. There was indeed opposition by the civil society to this view taken by both the government and the ruling party. The agitation for a new constitution did not cease, and one remembers that on New Year's Evc in 1995, president Moi prmised a new constitution. He promised to bring in foreign experts to coiJect and collate views from Kenyans and give parliament a draft constitution for debate and enactment. The government ultimately abandoned this process. By August 1995, both the government and the ruling party were saying, yet again, that there was no.constitutional crisis in Kenya. It took the agitation of the NCEC, an alliance of civic initiatives and politicians, to force the government to embrace the call for reforms. The IPPG handed over the political initiative in the constitution-making project to the ruling party. Reforms were confined to making the electoral field level to competitive politics. An act of parliament was passed to provide for comprehensive constitution making. It Is important to understand that the government and the ruling party decided to oversee constitutional reform via the talks that started at Bomas of Kenya and then they danced their way to Safari park. What was crucial about the talks called Safari Park Ill Is the acknowledgement by the government and the ruling party that they were both on board the constitution-makIng bus. This was a victory for the constitution-making project which has sought this acknowledgment without success since 1992.

What, then, is the role of the government in facilitating the making of the new constitution? What are the prospects of this role being played in a patriotic manner? Is the government now committed to these tasks? If the government is committed to the tasks of constitution making, It must g: Aara d security for the entire Constitution making project. What we have seen in

151 makes us wonder whether the government is not committed instead to intimidation and scarIng the people from the project of constitution -ma king. If the Kenyan people can be invited to exercise theft right to vote and subsequently be brutalized over their expression of what they saw as an election which was neither free, fair nor peaceful, what guarantee is there that the constitution-makIng process will be any different? There is great insecurity in this country, and the government must given definite guarantees addressrng the issue. At the moment only up service is being paid to the issue.

What aboUt the infrastructure? Many places in Kenya are inaccessible at the moment. Are these "Not yet Uhuru roads ever going to be repaired so that the constitution making process can take off? I-low is the North Eastern Province going to be accessed by the commission set up by the Constitution of Kenya Review Act and all those groups that are bent on monitoring the constitution-making process? Does the government have a response to this responsibility?

is the government going to freeze all economic, social and political problems uitil the constitution-making process is over? If there is no moratorium on evictions of sqiiatters, slum dwellers and hawkers, how does the government expect this sector of society to participate in the constitution-making process? If the issues of unemployment and poverty, for example, are not addressed while the process is on-going, is the exercise ever going to be relevant and worthwhile to all these groups?

Are there guarantees that all societal issues are going to be discussed and given constitutional relevance? It has been implied by various stakeholders that certain issues may not be discussed and that the Constitution of Kenya Review Act will be interpreted narrowly so that certaIn issues that are not In the interests of the status quo are left out. The government must come out clearly and confirm that we will discuss all Issues, including sovereign debts and military bases.

Will all the voices and ideas in this society be allowed to contend? lithe commission hears Kenyans in the Chief's camp, we can expect that the prevailing culture of fear in Kenya will not allow all voices to be heard. The Kenyan people have been invariably compared to a chicken (all our symbolisms seeni to rotate around Hjogoo) that has been tied up for a long time and upon being untied it remains motionless. If we have the hearings In the so-called multi-purpose halls, are we not giving the process less credibility since these are the arenas of stolen votes? What about the church compounds and mosques? The government must realize that there exists in this country a pervasive culture of fear that is real and must be allayed. Let us not underestimate the culture of fear; let us address It. It is the government that must come out and show the necessary goodwill. This is crucial in an environment of insecurity that pervades the entIre society.

government going to allow the donors to have a voice in the constitution- g process? We are constantly hearing the principles of "sovereignty" and Internal of a country" being invoked by the government when they hear foreign voices L 152 that they would rather not hear. If the donors are expected, as they are, to fund the constitution-making protect (in part or wholly), should not their voices be heard by all of us? Will there be openness in the affairs of our government and foreign governments in the constitution-making process? Or are we going to be treated to collaborations that remind us of all the previous electoral processes?

The con stitution-ma king project is Kenya has hitherto reflected the succession issue. This is a narrow project and is confined to the political class. It is going to be reflected in all the structures and forums of the constitution-making project. Is the government prepared to facilitate a broader approach to constitution-making as reflected within and without the act and ensure that what we are involved in is Indeed the creation of a new social order?

These respon5ibilities are not exclusive. Kenyans expect much more than the questions we ask here. We are not certain that the government sees these issues as its responsibility and we are demanding that the government embraces these issues as such. We must not allow the policy of "wait and see" diminish our already sijocking memories. We must be vigilant and demand that the constitutIon making process be fair, free, peaceful, participatory, inclusive and sustainable. And this is not much to ask from our government.

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1534 Prerequisites to a Democratic Constitutional Review Process MUGAMBI KIAI AND WILLY MUTUNGA

Barring an unlikely legislative upset, Kenya has a constitutional review merger. The public mood evidently supports the merger, despite some glaring lacunae that characterize Its crafting. Since we have decided to make the bed this way, we will have to sleep on it and what remains is to put aside the angst, acrimony and vitriol that has characterized the process thus far and look to the work ahead.

it would serve us well at this stage to briefly remember why the agitation for a comprehensive constitutional review process commenced and then assumed the proportions of a tidal wave. It was the wish of the majority to redefine our nation and to collectIvely spell out our common visIon, mission and aspirations as a people as well as how these can be achieved.

We all know our history. Since the formation of Kenya as a national entity, our history speaks of several instances where discussion was hardly tolerated. l-lence the primary challenge of the whole constitutional review process will be to facilitate the free exchange of ideas and views and then establish a national consensus.

In order to satisfactorily achieve this and arrive at a new and democratic constitution, we will need to fulfill at least tough conditions. These are that;

The prevailing environment shall be peaceful and non-violent

The fundamental rights and freedoms of Kenyans are respected at all times, and

• The key organ in the review process, the newly re-constItuted ConstItution of Kenya Review Commission headed by Professor Yash Pal Ghai is not only independent and impartial but also seen so.

The Ghai commission is only in control of the last of these three crucial variables, and this should Indicate the enormity of the task of all Kenyans as the constitutional review process kicks off, as it calls for our combined commitment, brawn and brains to see it through.

Obviously, the Glial commission's Independence and impartiality is going to be a • stickIng point throughout the process. The primary disagreement throughout the negotiations on the process for constitutional review hinged on the fact that there have been continuous efforts by various groups to take control of the process. This he potential pitfalls that the condition of independence creates for the Ghai on. Even as the merged process begins, there is a strong view that the review suddenly being rushed - after five years of stalling, stone throwing and IL 154 lethargy - to fit into the election timetable designed to favour the incumbent.

Yet should the Ghai commission be even perceived as being partisan or as pursuing a hidden agenda from any quarter, we can surely kiss consensus, agreement and democracy goodbye as this will encourage strong resIstance and protests from those who will feel alienated by this.

To create independence and Impartiality and also encourage a perception that the Ghai commission is independent and impartial1 It will need to be very transparent in all its deliberations and transactions. It will need to be open to public scrutiny and Kenyans will need to know the chapter and verse of all of its workings. Indeed, the commission should be enjoined to constantly supply wanjiku with a comprehensive record of its activities. Moreover, it will constantly need to explain the rationale behind its decisions to the public.

With regard to the political environment, It is a truism that democratic institutions cannot be created while the parties to it are at war. A cease-fire must be est4lished and secured. The government, due to its constitutional mandate to provide security to the nation, has the primary duty of ensuring this. Yet given our background of political and other violence, Kenyans and the international community will need to press the government hard to create the enabling of an environment that guarantees peace and security, Kenyans will need to identify all those areas where violence continues to recur and create citizens' lobbies to quell the violence. Neglect by government must be met with obstinacy by the citizen.

Violence is an abrogation of the right to security and also attacks the sanctity of human life. And there are other violations of the fundamental rights of Kenyans that must not be allowed to occur if we are to guarantee a democratic constitutional review. These include the rights to free speech and the press, freedom of assembly, freedom of movement, and the freedom to conduct mass civIc education.

The reason for this is simple: democracy is about the contestation of ideas as well as consensus building, peace and stability building and national healing. The only way to guarantee this is to ensure that those who want to get a hearing do so in one way or another.

Our culture of zero tolerance to open, frank, honest and brutal discussion is a big impediment to the satisfaction of this con stitution. Merger does not mean homogeneity of thought, and those who disagree with us must not be marginalized but properly heard. Indeed, it is a standIng test for the integrity and democratic value of the merger that those who disagreed with the way the merger was implemented are allowed to conduct their activities in a free and open environment. Those wishing to induct parallel reviews are perfectly entitled to do so, whatever we may think of the idea.

Kenyans will also need to establish their own mechanisms on how to monitor th review process so as to ensure that they are not taken for a ride. This was the re why we strongly agreed with the suggestion that the Lifungamano initiative 155 not be wound up but should be redesigned to carry out this role, as one among many citIzens' lobbies that are entitled to constantly reaffirm that the integrity of the process is not breached. The reason for this is simple: given its capacity and the goodwill that religious leaders continue to engender in Kenya, it is properly placed to bring its moral fibre it bears in case of irregularity in the process.

Ultimately, the constitution that will be built must belong to all Kenyans if it is going to gain any legitimacy as a democratic document. And if it is to last our lifetime and that of our successors, it will not be a document for Yash Ghai or President Moi or the Kenyan opposition or the religious groups. it will be our collective document the gospel according to wcrnjiku. Let us remember this now to safeguard our common future.

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iL. 156 When the Tribe Means the Politician: A Response to Kiraitu Murungi MUTUMA RUTEERE

In an address at the Budapest University in 1992, the historian Eric Flobsbawm quipped that when he was younger, he thought that the only scientists who could cause evil were the chemists, physicists and biologists, but later he came to realise that the apparently innocuous social scientists held even more dangerous powers.

Reading KIraitu Murungi's commentary on "Gerna and the Politics of Tribal Solidarity" (Sunday Standard•, March 5), 1 am reminded of this observation by Hobsbawm. For Kiraitu is not Sliarrif Nassir. He is a politician who is excited by ideas. An intellectual whose ideas are influential beth in shaping opinion and certainly policy w(thin his party. If the Democratic Party were in government, he would be the country's chief legal officer And that has serious implications on democracy and human rights. He has taught at the university and published his ideas. If for no other reason. 1 believe this is justification enough as to why his comments should be debated.

Even more importantly, however, his write-up brings the devastating news that the age of innocence is over. That our politics are so hopelessly ethriicised we should just swim with the current and wait for whatever omens the ethnic winds blow our way. This Is serious news from a credthle source. If anyone has been at the centre of the struggle for genuine change in Kenya. Kiraitu has. Long before going into exile, he had always championed human rights. He was with Jaramogi, he was in Safina and evcn in 1997 he was there in the streets to demand for change. When he brings us such news, we must take him seriously and try to understand his message.

Third, Kiraitu 's article is a challenge to those who disagree with him to come forward and debate him or else shut up.

For these reasons I attempt to pick up Kiraitu's challenge.

No one can dispute Kiraitu's diagnosis that our politics have been ethnicised. We all now know what happened in Kenyatta's time and what has been happening under Moi. I agree with him that Mol's decision to ban Gerna was a mistake. Democratic = protections are not for those with whom we agree with but for those the powerful wish to destroy. Moi should have allowed Gema and all the other ethnic groups to exist. In time they would have exhausted their balance of credibility and fizzled out of existence. By banning them, he only handed the extreme chauvinists of the Kenyatta era a banner under which to re-invent themselves.

So far, Kiraitu and I are in agreement. Where we part ways Is in his justificatiorlA the resurrection of Gema. His argument seems to run: Gema is a dem4 j

157

earthquake. This has frightened the Mol government. We all don't like the ruling elIte. Consequently. Gema resurrection is good for the country.

This is preying on the desperation of Kenyans. It is true Kenyans want change But it is not just Kenyans from the Gerna communities, Remember whom the majority of Kenyans have been voting for; the opposition. The division that is in the opposition is not the mIstake of the rnwananchi. It is the politicians' baby. The one thing that unites Kenyans of all ethnic groups is their disappointment in the lack of opposition unity. It seems to me that Kiraitu wants to extend the split at the top to the grassroots.

Kiraitu's justification for Gema playing the ethnic card is that people are naturally ethnIc. That is why conflict in our times will be a conflict of cultures. Samuel I-Iuntington is his authority on this.

However, Kiraitu, does not tell us how to harmonise the political Gema and the cultural Gema. Which of these is he rootIng for? Weall know that Genia is a political creation, just like Kalenjin. the Suba and the concept of tribes in conflict' The fact tIat the Genia communities were at the forefront of the independence struggle does not make them superior or different from the Kalenjin or other Kenyans. My father was in detention in Kisumu and still speaks of the kindness and brotherliness that the Luo showed the Mau MaU detainees. The independence struggle was not for the benefit of select groups. In any case, others fought in different ways. if there is anything Kenyans share, it is the history of colonial humiliation and the betrayal by their political leaders. We do not have to invent exclusivist myths to unite our people.

The notion of clash of cultures is the invention of cultural supremacists. There is no cultural conflict in the world as yet. At least not in our world, What we have are conflicts created in the name of culture. That is what happened in Rwanda. The clash of civilisations is an arrogant posturing that some cultures are incompatible with what the 'civilised' world views as the riorm'.

In any event, culture is not the language of that which is good and needs to be protected. It is the language of power in disguise. It is how power 1ustifies and perpetuates itself. Award winning ugandan scholar, Mahinood Mamdani, in his recent book, Beyond Rights Talk and Culture Talk proves this. Cultures are not homogeneous. They are contested and often undemocratic. There is nothing magical or democratic about them.

Just pause and ask yourself, why should the Kikuyu. Embu and Meru barricade themselves against other Kenyan cultures? And when did they decide on this? Surprising that Kiraitu sees the Mol government as an elite and does not see the parallels with ii his position. I come from the Gema communities and nobody has consulted me about this Gema revIval. As far as I can ascertain the consultations are at the leadership = l vel only. The attitude is that they know what is best for us- if that is uncomfortably kh;mfliar, it is meant to be. If the Gema elite has no time for democratic consultation why should we believe that they will be democrats once in power?

158 The truth is that the ethnic group is a political creation by political entrepreneurs who want to get into power by whatever means. Maybe clans mIght have some social relevance- where they are is still small enough. Where they are large coalitions, as in my Central Imenti constituency, they are justa politician's tool to take and retain power. If the clan members get involved in burials at all, it is because they live next to us. Tell me about my neighbours and family. That makes sense in every day livIng.

Sadly, the Kiraitu I read in this commentary is a man who appears to have lost faith in ideals. He taunts us: "Just look at Anyang Nyong'o, you dreamers? This is a disturbing position. Because our politics have been ethniclsed is no reason for us to give up on change. The road of despaIr is not the road to change. If we were to stop dreaming, we would all be voting for RANLI and fighting over the spoils of corruption. If we engaged in reiI poiltik, we would never vote for the opposItion. But we keep dreaming. Maybe this tIme. Maybe.

Kiraitu may be right when he cries that 'they only see Gema,' but it is a poor excuse to demand to be fudged by the lowest common denominator. If you decide to ta'e the high road, the judgment is always harsher. Kiraitu and Ntimama cannot be ludged on the same scale. Ntimama does not claim to be anything beyond what he is. Kiraitu speaks of change. But can we have change when he counsels us that it matters not how you win? Prof. Nyong'o might have lost his seat, but his contrIbution to the Kenyan dream is immeasurable. In him, our children can see that winning isn't everything. How you win also does matter.

True, the politics of the 'tribe' will resonate with many of our people. Gema and any other ethnic coalition might even win the elections on the ethnic platform. Will that change the material condItions of Kenyans An elite will have won on the platform of undermining the project of the nation. They will be calling upon us to transfer our loyalty and faith to an amorphous entity called 'tribe Of course they will be the sole decision-makers of what this entity is and what its agenda is. For in the politics of Gema and other ethnic groups, it is not the 'tribe' that is at the centre stage. it is the political elite speaking in the name of the 'tribe

Like, Kiraitu, I share in the frustration of our politics. For many Kenyans, however, the current state of our country is not an academic or political frustration. It is a desperate struggle to live from day to day. If they vote for the candidate who speaks their language. It Is not because they are exercising their choice. It is because they have no real choices in their lives. Nobel prize winning economist, Amartya Sen, has eloquently proved this.

But unlike the many Kenyans. Kiraitu and the political elite are in a position to change the direction of our country. If they are willing to listen. Kenyarts are even more frustrated that their ieaders never listen to them. To paraphrase novelist Doris Lessing in her book, The Wind Blows Awc'y our Words, "imagine a secret conference called by4 the politicians, who have agreed to set aside all the slogans and battle cries and circling for better positions just for the duration of the conference, which vill d

159 what is the matter with us, what is wrorg with politicians, that we can't listen to the people? It is as if the world, as if we were being dragged along by some undertow of stupidity too powerful to resist, and all the sharp, frantic, desperate cries of warning are like gulls glinting as they wheel over the scene and then dip and vanish, screaming, If you dv this, then that must follow- Surely there must be something we can all do, together; perhaps we can learn to lIsten......

We have heard that opposition unity is a dream and never happens in real life. But Kenyans read newspapers. They listen and watch news, They know it happened in Zambia, in Ghana, against Milosevic and many more places. They know it is the only way It can happen. It is easy to lay all the blame on the ruling elite.

For some reason. re-reading Kiraitu's justification for ethnic politics keeps reminding me of philosopher Hannah Arendt's frightening typification of the banality of evil'.

kL 160 Why Majimbo is not the Answer to Our Crisis of Rights MUTUMA RUTEER

Like most of us, Raila Odinga, NDP and KANU now agree that Kenya is engulfed by a crisis of rights and governance. In spite of being in the cabinet fr Raila cannot, after all, write off the close to a decade he has spent In political detention. Nor can KANU any longer shut its eyes to the legacy of its three decades plus in power. The scars are there for all to see, as are the lengthening queues of Kenyans fleeing the country for better fortune.

Where Raila, NOP and KANU lose the rest of us is in the way they choose to interpret the past and propose to rescue our future from the fate of so many Other African states. Their blueprint for reclaiming that future is majimbo, a refurbIshed verion of the system Kenya abandoned way back in the 60s. In this proposed scheme of things, going by the media reports, Kenya would be carvcd up into numerous regions along the current provincial boundaries. In the way this argument goes, power will lead to greater political accountabllity, less abuse of rights and a greater sense of ownership of the political system among the Majority of Kenyans. Clearly a scheme meant to win the support of the many bitter with the current political deal.

As is often the case with clever political schemes, however, the NDP/KANL1 mafImbo scheme has left too much to assumption, glosses over Inconsistencies and sacrifices the long term for the expedient. it would have been respectable If it had a convincing logic without being idealistIc or fanciful. As it stands now, this throwback from the past has neither of the redeeming qualIties. Here is why.

Two things clearly emerge from this majInibo proposal. One is that the NOP and KANU have read the symptoms of the sickness but made the wrong dIagnosis. Second, and flowing from the first, they have given a wrong prescription, one that is potentially deadlier than the disease. Let us look at each of these claims.

The NDP/KANU proposal assumes that the crisis of rights that engulfs Kenya at the moment is the result of the unitary system of government. That the over-concentratIon of powers in a powerful presidency in a centralised system of government leads to ethnic violence, corruption, extreme poverty and many tragedIes that are the daily experience of Keriyans. Even street knowledge rejects such a conclusion. If ethnic politics havebecome sharpened in the recent years, this has been in response to government policies that relegate citizenship to a lottery of whom you know. Ethnic tIes have only come to play an increasing role in the country today because state policy no longer works as it should. Which Kenyan would be bothered about theA ethnIcity of who stamps their forms as long as they did it effIciently and with demanding a bribe?

161 Those today who view Mungiki as a cultural group out to spread Tailbanic values and not an expression of political and economic frustration sImply miss the point. Mungiki and similar groups are only moving in to occupy the vacuum left by the collapse of government insecurity and economic actors.

Allowing for good intentions by the promoters of the majimbo road show their project is based on a misreading of the country's history and politics. Is it not true that what we have is simply unaccountable power that rests on Institutions that were designed for colonIalism rather than democracy?

To argue as though certain regions have benefited from our system of large-scale corruption and neglect is to engage in politics of the immature. Neither the much talked about kikuyu under Kenyatta nor the often-whispered Kalenjin under Moi have anything to show but their rags. A few faces in power and useless kilometres of tarmac mean nothing to communities of impoverished. Politics of kinship are for the foolish, those without the view of reality beyond their next meat and family. If the Turkana have suffered neglect it means the Kalenjin with surplus maize have Auffered the lack of markets. It is not just the TLirkana who lose but the whole country. If you think development is expensive, you havent tried underdevelopment.

The second sticky point of the NDP/KANU majimbo adventure is its simplistic sweep of all uhcomfortable concerns under its dirty carpet. Historically, Malimbo is a product of fear. The majimbo of the 60s was driven by the mistaken view that the Kikuyu and Luo would conspire to keep control of the country in their hands. Have we learnt nothing in thirty-seven years of independence?

The assumption that Kenyans are only safe in the castles of their ethnIc skins is a bubble that has long burst. This kind of thinking has no answer to the many violations of rights and conflicts that take place within groups. What will prevent the Siaya Luo from marginalising the Mbita Luo? Or the Muranga and Kiambu Kikuyu from barricading the presidential motorcade from crossing River Chania into Nyerl? And s what do we do with the North Eastern, home to Somali, Soran and others, as indeed is the case with all provinces?

Proponents of majimbo have been at pains to argue that democratic states such as the US, Canada and Germany have federal systems. It is argument by flawed analogy. The federalism of the US is not the same as that of Canada or Germany. Each was a response to a different reality. Moreover, to suggest that majimbo is the equivalent of federalism is to suggest that oranges are goats. An exercise in sophistry of the worst kind.

For one, majimbo carries a historical baggage that does not sit comfortably with the values of human rights.and democratic citizenship. In the past, it has been the banner for serious violations and crimes. Second, federalism in a multi-ethnic conimunity e Kenya.needs to be carefully tailored not to offend the principles of human rights re at the core of our democratic vision. The entities that our laws and political

162 instItutions must protect are cItizens, irrespective of their ethnIc groups. Ethnic groups have no human rights. They may claim certain rights. However, the day we will be forced to recognise them as havIng these rights, we will have conceded that we have failed in making real our ideals of a Kenya for all. This we must avoid

Where is the evidence that ethnic groups are naturally democratic? We are not even agreed on where one group begins and another ends. Who are the Luo? Do they include the Suba? Who are the Kalenjin? Do they include the Pokot? Who are the Luyia? To proceed as though the composition, the identity and the democratic credentials of so-called ethnic groups are not problematic is to take comfort In the security of the Magnot Line. A non-solution that pretends to be one and will not allow the search for the real. in any event, are we to assume that the only problems in our society deal with the internal divisions within the jtmbos without undermining human rights? Since they cannot credibly claim that the ethnic group is, by its very nature, democratic and human rights frIendly, they must show us how we are going to solve the poblems of clan divisIons, localized tyranny and undemocratic power that speaks in the name of ethnicity and culture. Since no political party can claim to spek for any ethnic group in Kenya, it is from the very begInning doubtful on what basIs power can be transferred to entities that have no political face. Beyond the hype and rhetoric of its drum majors. the NrjP cannot claim to be the voice of the Luo, nor can KANU be said to be the voice of the KalenjIn or DP of the Kikuyu for that matter.

In addition, the advocates of majimbo must demonstrate how their political baby is different from the monster-child that demands RIft Valley for the Kalenjins only; Central for the Kikuyu alone, if majimbo will mean the exclusion of certain communities from lMng in certain areas of Kenya, then it cannot be advanced as an acceptable political project. For more than any other, the principle of non-discrimination is the most sacred of our accepted values of human rights. We cannot discriminate the Ogiek over the Digo and still claim to believe in one Kenya. While we may quarrel over our past, the construct we call our state only survives as long as we believe in a shared future. The glue that keeps it going together is the belief that we will all count as Kenyans. Once we have destroyed this, the rest is but one turn into the road to Rwanda and BosnIa.

163 4 The People, the Constitution and the Media in Kenya WILLY MUTUNGA

1 ntroductiwi This is a very interesting topic. Let us simply take a case study and brainstorm around it. Let us take the two parallel constitutional processes now invariably called the Raila Committee and the Ufungarnano Initiative. Both are crucial to the constitution and the economic, social, cultural, political and the spiritual well being of this nation. Indeed one can say that their outcomes will determine the survival of this nation.

Both these processes have a Jong history. Parliament in Kenya sat for the first jime in 1907 (although 1 am sure the Njuri Njeke and other native parliaments were there before it) and it was a parliament for white settlers and their colonial administration. Through struggles the Asian Africans were represented, and the first African representative was appointed in 1944. President Moi was nomInated in 1 955 as the third native representative (the first two were Mathu and BA Ohanga). it was in 1957 when natives elected their first representatives on a limited franchise. Let us recall that it is these representatives and others elected in 1958, 1961 and 1963 that went to the Lancaster House conferences (was the wearing of caps and monkey skins part of this representation I wonder!) to debate the constitution for independent Kenya. After independence, parliament made over thirty constitutional changes between 1964 and 1991 heralding presidential authoritarianism (the powers of our president are said to combine those of the Queen of England, those of the president of the US, those of the prime minister of GB and those of the Pope), one parry dictatorship, gross violations of human rights, corruption, the pillage of national resources and for our purposes today the violations of the rights of a free press. The Raila Committee simply follows in the footsteps of the other parliaments and the arguments are the same: the white parliament used racial arguments to deny the rest of the races political participation. The independent Kenyan parliament has simply argued that once we elect it we lose our voices.

They are telling us that they do not want to hear about "social contracts". "people- driven constitutions, participation and civil society. They can represent all of us including women, for they are the "husband of husbands'. They may as well look back and ask us when did we ever have a voice, whether during the colonial period or after independence. Al! we have is the right to vote, which is simply mechanIcal.

The Ufungamano initiative has a long history also. Whether you trace it to the struggles Mekatilili, K'oitalel, Waiyakl, the trade unionists Chege Kibachia, Muiridi Mbingu. n Singh, Fred Kubai or the armed struggle of the Mau Mau it is simply the

164 forces from cIvil society challenging their imposed or elected leaders on the issues that the people feel are not addressed. After independence, the labour movement, the students and faculty in schools and universitIes, the professional associations and the religious organfsations have constantly battled with the people, representatives and governments for freedom and survival. The most recent wave before the Ufungarnano InitiatIve was the NCEC, an alliance of civic organisatIons and opposition political parties. The national dialogue that culminated in the talks at Bomas and SafarI park gave birth to a natIonal consensus called the Constitution of Kenya Review Act.

This national consensus has been rejected by the ruling party and by and large all political parties., their hypocrisy notwithstanding. A lot has been written about the Act in questions its flaws and its fraud. What has been missed is why the political parties could not unjam the Act in the national interest and keep the constitutional process alive. My view has always been that the Act was going to open the country to a discussion of issues open it to all to move around and visit, and the end result was to be the beginning of issue oriented politics. I am of the view that not a sine political party is prepared for that because that means ideology, political positions and solutions. Why not stick to what they know best: divide and rule, just as the British did before them. Invoke ethnIc, racial, gender, generational, religious, regional and the recently found Nllotes/Bantu divide. Whether the divisions are not possible on these grounds, as in Garissa use the clans and there you have your divisions.

This then is the case study. Where is the media in all this?

What I am going to say today does not mean that I do not appreciate the struggles of the medIa for freedoim I do. Having said that, what I think is crucial is to discuss certain challenges that the media faces today In Kenya.

I believe the time of criticism without addressIng solutions to problems is now gone. I will not criticise the media without making suggestions on what should be dune. 1 need not restate the role of the media In this socIety. The national consensus is that the role of the media is crucial, although we may not agree on what precisely that role is. My address will basically be in the form of posing questions that you may want to answer. These questions are not exclusive by any means, but they express some of the concerns of an individual who is a student of the politics of constitution-making and who has demanded that the people be allowed to speak and to have a voice.

THE QUESTIONS

Whose media are you? Those of you who have read Noam Chomsky's book, Manufacturing Consent, may have an idea of what I am talking about, Closer home Ngugi wa Thiong'o in Detained has raised similar issues as they pertaIn to the Weekly Review now dead and burle Phillip Ochieng has raised similar issues in I Accuse the Press. A book edited by

165 7ri1atera1ism the Trilateral Commission and the Elite Planning for World Manageinnt tells a very compellIng story on how Jimmy Carter got elected president of the US in 1976. What is being said by these authors is that the media is a tool in the hands of whatever status quo, a new world order that reflects an economic system that dominates and exploits the world. I guess those from the Nation may want to investigate the content of what is loosely called the Aga Khan capital. Others can do likewise including the impoverished Ketiya Times. This exercise should influence your positions on the paraHel processes. Why has there been no consistency on this issue? Why has the press not taken sides and stuck to them? Why has the media confined itself to commentaries? While individual journalists may have taken personal crusades on the issue, can that be said to be a consistent policy of the media in question?

What Constitution do you want? Various groups and stakeholders have stated what constitutioi they want. You may record the positions of the political parties, religious organisations, Algak, professIonal bodies, NGOs and even people's organisations. I doubt whether the media ha4made its position clear, if it has tried at all. Here the media is no different from COTU. The Constitutional debate is not about the narrow legal discourses, but generally is an entry point to an societal problems that afflict Kenya. The media has not said what its woes are. it does not act as a stakeholder but an observer.. So what is new about the Raila Committee or the Ufungamano Initiative? What is crucial is what the media wants as Its constitution. Once that is known, one would want to know what the media will do to achieve its goal.

When will you stop the tactics of running with the hare and hvnting with the hounds? In 1960, when the Nation was founded, it supported the call for independence and also the political party to bring this about, KANU. There was an issue of change here, momentous change, and we know what position the East African Standard took. I wish we had today such media that is divIded on ideological and political grounds. At the moment, whom do we have on the side of the reformists? You indeed have columnists and cartoonists that are for change, but this commitment is not consistent, simply because these individuals are not the decision-makers.

When will investigative journalism begin in Kenya? This stuff that happened over in the 1960s and 1970s and the 1980s is great reading. Why was there not a single journalist who could have stated the truth as it then was, and go to jail or to his death? There is so much scam on corruption In Kenya, but how we yearn for such investigative journalists to expose these ills.

hen will the media flex its political muscles? West, the media is a cog in the wheel of industrial military complex and its

166 dominance. The media is a crucial centre of power. We may say that this is the case in Kenya as well as the media reinforces the status quo. But what happens If the status quo is no longer acceptable? Should the media turn into evangelists and seek divine guidance, or should the media articulate and agitate for fundamental change? What I am asking is when will the media play politics in the national interest and live to its billing as the fourth estate?

When are we going to speciulise? In this issue of the constItution and the people, who can we say has been the most informed journalist, consistent and on the ball on the issue? I gave a long history of the case study, but who follows it? Why don't we have journalists who are specialists in various fields? The media will never play an important role in this Issue unless there is specIalisation.

When will you write books? Phillip Ochieng and Joseph Karimi have done this. We need more books more often on your experiences and dwelling on all topical. issues.

When shall we have the alternative media' I hear the monitor in Uganda has been bought by the Nation! We have our history of the journalists who could not stand the intellectual slavery of the mainstream media who quit. We know the history of those ventures. That has not stopped anybody. We must go on and on.

Let us now get into the interesting part the part of the discussion. Let us clarify our case study further and see what I have missed and what other issues emerge. I call it collective intellect and it has always worked.

I thank the USIU for the invitation. i was once a University don and I enjoyed teaching until I lost the job. One simple incident that I recall that touches on the press is that when the police searched my office and took me into custody the following day (June ii, 1982), the Nation reported that the police carted files and materials from my office. Actually they did not. It is only later I saw what games the media was playing. The many files built a case for the police who were to argue that I was found in possession of a leaflet called: IM Solidarity; Reject these Nyayos." If they took so many files, of course a leaflet must have been stuck in one of them. Guilty as charged. Thanks.

167 Inter-Parties Parliamentary Group (IPPG) is Coming Back! MUGAMBI KIAI

IPPG is coming back in various forms. The KANLI/NDP/KSC/SAFThIA/SHIRIKISHO alliance may give the necessary majority to whatever bill, reflecting the Raila committee's report, is presented in parliament. Or this alliance may be a gimmick that gets Kenyan to talk about the report until the elections are around the corner and the politicians very conveniently plunge the country Into an electoral virus infection. The talk about the merger of the Raila committee and the Ufungamano Initiative that has some support (The Daily Nation, the British High Commission, Hon. Kiraitu Murungi, among others) is yet another form that the PPG may take. Either of these forms of the IPPG will not dIffuse the tensions in Kenya, as its predecessor wa16 able to do in 1997.

Both the Raila committees report and the Ufungarnano Initiative are parallel processes on constitution making. There is absolutely nothing wrong legally, morally and politically with the parallel process. The principle of checks and balances is part of our democratic crusade. What we can expect to get out of these parallel processes is a national dialogue, a contestation of ideas that does not reflect such parallel processes.

It is abundantly clear to us that the political talk in town is that we do not have enough time for comprehensive reforms to the current constitution. Notwithstanding the political hypocrisy and the double talk that is going on, the following is the political menu that is being offered and will ultimately be served to Kenyans:

• • Let us prepare for the general elections in 2002. In doing so, let us focus on the unfinished business, namely, the strengthening of the electoral commission so that ft takes on board managerial and security affairs of the electIons as well some of the powers of the electoral courts; the making of the operations of the Kenya Broadcasting Corporation reflect the content of the IPPG reforms of 1997, the reviewing of electoral boundaries and the ending of the existing and possible future gerrymandering; the funding of political parties; the unfettered registration of all

13 voters over the age of 18 and generally allowing for the contestation of free, fair and peaceful elections in 2002.

• Let us have comprehensive constitutional reforms after the general elections of 2002. Meanwhile why not have a statement of principles that will guide this process? Why not simply merge the amendments suggested by the NCEC, the NCCK, the Episcopal Conference of Catholic bishops. the Supkem, the Muslim consultative council, the women's political caucus, the national council of NGO's, the Raila mmittee and other contributors that have flooded the constitutional market?

168 The suggestion here would be to get a technical team that can synthesize all the amendments and come up with a legislation that is best for Kenya.

• The argument also would be that there is already a consensus of some of the principles the democratization of the powers of the executive; a modern bill of rights; autonomous local governments; electoral constitutional and legal provisions that guarantee periodic free, fair and peaceful elections; strengthening of Independent institutions (the judiciary, civil service, armed forces, land corn missions, human rights commissIons, parlIamentary service commissions, auditors and controller general, anti-corruption authority, poverty eradication and wealth redistribution commission and others); gender equality and equity; land redistribution; the content of the economy of Kenya; multiple citizenship; just to name some of the obvious principles These principles, it will be argued, will form the basis of an interim constitution and a commitment from the prospective governments in waiting that comprehensive constitutional reform will be undertaken.

• There should be a direct discussion and resolution of the issues of succession and transitional justice (retirements, amenities, truth, justice and reconcIliation commissions and other transItional matters).

There has been sufficient civic education and what is now needed is voter education.

• economic reforms will be undertaken, corruption eradicated and aid restored so that there can be free, fair and peaceful elections.

The danger of this menu, once consumed, Is the dismantling of the parallel constitution- making processes. Like the IPPG reforms of the old the political partIes will again be paying lip service to comprehensive constitution-making. They will be avoiding the politics of issues, clean politics and will sweep all the burning societal issues under their divisive political carpet. Again, it will be the polItics of divIde and rule premised on ethnicity, race, regionalism, religion, generation, gender and the Nilotes/Bantu divide. And let us not forget that what the political partIes are now dIscussing is the Moi succession. Indeed it is clear to us that some parties in the opposition may now sabotage constitutional reforms once they know president Moi can be blocked from running for office in 2002. Some political leaders may be convinced that their time to inherIt president Moi's machinery of authoritarianism and violence has now come!

It is supremely important, therefore, that the religious leaders steering the Llfungamano Initiative do not faJi prey to these schemes. There are forces within the Ufungamano Initiative that would welcome the return of the IPPG reforms. There are good reasons for insisting on the Lifurigamano Initiative continuing with its prolect.

The Ufungamano initiative gives the religious groups a golden chance to redeem themselves from the past trials and tribulations at the hands of the Mol-KANU regime. The history of mediation, facilitation, and dialogue based on state house visits, the pressurising of teachers and workers to give up the struggle for their right 169 particularly good history. The relig!ous leadership cannot continue acting as a buffer between their flock and the government when it comes to demands by the flock for their basic needs.

The Ufungamano Initiative has the broad popular base, and whoever doubts this should allow the contest between the two initiatIves to continue. Those who are calling for the merger of the parallel initiatives know this very welL For a long time the people have sought their Moses and Maryam. The people's prayers have been answered and the exodus has begun.

The Ufungamano Initiative has correctly stated that the issue of what will be done to the draft constitution shall be discussed when the draft constitution is ready. Why is the Raila committee panicking about this eventuality? Why is the chair of the committee calling the Ufungamano InitiatIve illegal while his vice-chair correctly sees the initiative as an exercise of the legitimate rights of the Kenyans? Of courses honourable George Anyona asks the legitimate question, "what will they do with the draft constitution?" president Mci has himself asked the same question. An erroneous legal impression has been given that only parliament can ratify such a constitution. Wrong!

A constitution made through methodologies other than the parliamentary ratification can be enforced by wcmjiku and fellow wananchi. As it happened in the Philippines under Ferdinand Marcos, there is no need to even use force. Organised, popular, and peaceful mass action is always an effective cure. The demand is simply one for change, and not even with the help and support of the entire world's armies and parliaments can the dictators keep themselves In power. Other examples are 3enln, Indonesia and Malaysia. Kenya herself is an example of this argument: section 2A was repealed Initiallyat K'asarani by a KANU partythatdidnothaveanyoppositlon in parliament; the 1PPG reforms were negotiated in County I-fall and the Constitution of Kenya Review Act was made in bomas of Kenya and the safari park hotel, places associated more with tourism than constitution-making projects.

There is a wealth of current legal jurisprudence that clearly shows that the people's power has constitutional and legal legitimacy. There is a legal basis for the supremacy and sovereignty of the citIzenry, the ownership of the state by the citizenry, and the supremacy of the voices of the people; ConstItutional theory knows of such mechanisms of constitutional ratification as constituent assemblies, national conventions, national • conferences, referenda and plebiscites that have even more moral authority than • parliament to legitimize a new constitution.

Should the Kenyan parliament stand in the way of Wanjiku's aspirations as stewarded by the religious groups, it will be signing its death warrant. The world has witnessed all types of tyrannies - whether presidential, military or parliamentary - attempts to = resist popular and democratic change to no avail. For rather than allow parliament to stand in the way of democratic change, Wanjiku will simply exercise her right to recall Lliament and wind it up.

170 Thank God/Allah that the religious groups have had proper constitutIonal, legal and political opinion on their mission and have ceased to be intimidated by the loud and furious choruses of illegal banter on the constitutionality and the legality of their God/Allah-driven and people-driven initiative.

I I

171 A 197 What Might Have In Store for Kenyans MAINA KIAI

Election fever is fast creeping in. KANU has formed a youth group to help "bring development closer to the people". Its "supporters" - remembering the financial boom brought by YK'92 - have formed new lobby groups. The opposition on its part is trying out unity in order to select a single candidate to oppose President Mol.

At the same time, civic and church groups have begun urgent civic and voter election plans. At a recent workshop attended by more than 50 civic groups in Nairobi, 199 6 was named the "Year of Civic Education" while the NCCK recently announced it would be actively and vigorously engaged in civic education.

The Electoral commission is holding hearings that will supposedly decide wich parts of Kenya will benefit from the 22 new constituencies that will be created. (Same craim that these areas have already been decided, and commission chairman Zacheaus Chesoni might be treating Kenyans to a public relations exercIse similar to Amos Wako's Task Forces).

New identity cards have been produced that require details that seem to have a bearing on the elections and specifically where each Kenyan will vote.

But elections are not held in a political vacuum. Several political scenarios could be in place by the time elections are held.

The demands for a level playing field have become louder and more insistent, especially from pro-democracy groups donors and the Opposition. Only KANU does not see the need for a level playing fIeld, but that is because it is blinded by its façade of stability brought on by the de facto and de jtrë powers of its top leadership. Once that cover disappears - as it inevitably will - it will probably be impossible to distinguish KANU from say, FORD-K.

So what are the different possible scenarios that Kenya could witness in 1997? In this article, I will discuss three possible ones, though these are not exhaustive or completely accurate. And given the characters of the present political actors, some of the scenes call for fertile imagination.

The first scenario assumes that both the Government and the Opposition continue on • their present political paths: the Government continues being adamant, repressive and determined to hold on to power at all cost, while the Opposition continues with its lack of vision, wrangling and confusion. Not much imagination is needed to visualize scene.

leaders will use the election date as a secret weapon, use the police 1

172 admInistration, civil service, KBC, the regal system,iots of money, the Electoral Commission and the licensing laws to their advantage. Ethnic hostility that characterized the run-up to the 1992 elections may resurface, as well as other forms of violence aimed at intimidating and silencing Kenyans. We will see a rise in money supply again as money from the parastatal scandals is put to use.

The Opposition will express outrage at all these actions and appeal to the donor and international community to do something about it. But they will grudgingly accept the status quo, and field as many as 20 candidates from all the factions (and splinter parties that exist now and which will increase with time) for the presidency.

Civic groups will again be reduced to the periphery of looking for funds for "voter education" and 'monhtoring of elections". All manners of abuses will take place, which the Kenya Human Rights Commission and other groups will carefully document and con denin.

KANU will win with an overwhelming majority, both at the preside,ntial and parliamentary levels. Life will get tighter and tighter, as the "victory" made possible by an uneven playing field, and the confusion of the opposition is trumpeted as legitimacy for repression and corruption. Tribalism will increase and the economic reform process will be slowed down as "it hurts the common man".

Meanwhile, the parastatals will continue to be fleeced with the delays in paying milk farmers extending to one year. The National Cereals and Produce Board will be declared a "very strategic" parastatal together with the NSSF, the Kenya Posts and Telecommunications and the Kenya Ports Authority. "Very strategic" parastatals will be exempted from adult.

The notorious Press Bills will resurface in their present form, except the publIc discussion of "very strategic" parastatals and Institutions will now be outlawed by the Bills. Violation of this provision will be punishable by a jail sentence.

Scenario two assumes that the Opposition agrees to field one among them against KANU. Now it is time to use our imagination. Let us imagine that opposition politicians actually agree on an acceptable formula for selecting one candidate and a candidate is eventually chosen.

One of the conditions of the agreement is that the candidate, once elected, will form a government of national unity, embark on constitutional and structural reforms and call elections in two years tinder a new constitution that will allow for really free and fair elections. The candidate will be barred from competing in these subsequent elections.

In this scenario, the candidate meets the full weight of the Kane regime's power. no meeting are allowed; KANLI zones are Out of bounds; no radio air-time and if provided, it is negative; his supporters are arrested and taken to court; his meetings are brok up; warriors and hecklers are used to cause violence wherever he goes; his farr

173 harassed; his tax payment record investigated; his personal life is published in Owned- owned or Supporting-supporting Press; he Is arrested numerous times and is in and out of court.

After the vote count, the KANU candidate is declared the winner and is quickly sworn in. Protests start but are quickly put down. Critics and opponents are bought (again) and they defect. Others are harassed and put in. Eventually, and tired out, the candidate calls for calm, and decades to "reluctantly 0 work with the government of the day.

Scenario Three Mere, the candidate promises heaven on earth as he campaigns against KANL1. He wins! (go on, stretch that imagination as far as possible).

He immediately releases Koigi and other political prisoners and orders the arrest of the "Bull of Auckland and the sons of a 'prominent politician". He travels around the country in rally after rally, preaching his gospel of change and listening to people. He orders that all roads, schools, institutions and bodies named after living people or slogans are renamed to reflect the "proud, not negative, history of Kenya"% le orders suspension of the Provincial Administration pending the report of an urgent committee to look into ways of reforming or eliminating the dreaded chiefs, DOs, DCs and PCS.

He orders water protects started and committees to look into &-4-4, the Constitution and repressive laws, the KPA scandals, crime and insecurity and KCC. He reaffirms his commitment to the rule of law and asks for patience until the committees report to him. He gives huge donations at harambees, promotes and appoints people on the spot.

But whIle the new appointments are welcomed, a trend slowly begins to emerge. The appointees or their immediate deputies, come from his tribe or those tribes that supported him from the beginning.

Soon the road to his ancestral home is tarmacked as "a president cannot travel an rough roads". Water and electricity earmarked for say. Kitui are diverted to his home area. Critics who point out the glaring similarities with the KANU regime are sharply and publicly rebuked, being branded "unpatriotic" or "beneficiaries" of the previous regime.

But the critics do not relent. They organize meetings, protests and press conferences to condemn the new regime. In order to control the critics, who now include the beneficiaries of the previous regime, the Provincial Administration is suddenly found to be useful in licensing (or ref using to hcense) meetings and ensure that security and order is maintained. The president's language soon changes from one of human rights and rule of law to one of law and order.

As the cries of Opposition grow louder, delegations of Kenyans from all over visit him h!,5 le/Othaya/Butere/ Ugenya/Kachelibe/Kilunngu home pledging their loyalty d requesting him to ignore the two-year transitional period agreement so country can continue to benefit from his wise !eadership" They term the L 174 condition that bars the incumbent president from standing as anti- democratic and anti-people..

Some of the more eloquent sycophants suggest that as the agreement is contrary to the ConstIttin, it is null and void and the presIdent should serve his full five-year term. 'Those in a hurry for Power," they say, "should wait for the next election, and fight like men."

The delegations go on for half a year and the president re1uctint(y agrees to bow to the pressure of the people of Kenya. After all, democracy is about listening to the wishes of the people.

In a midday radio announcement, he announces that until the report of the commIttee to review the Constitution is made to him, he has suspended the two-year agreement, because it conflicted with the Constitution - which he vowed to defend and would have caused a political vacuum, which may result in chaos. In effect, the agreement called for Impossible performance".

On that day, there is a notIceable presence of police and security forces in Nairobi and in areas thought to be weak on support for the president. He also announces that hewill travel the country to explain to Kenyans why he has ditched the agreement and seek their views on what to do next.

Thereafter, a massive public relations exercise is carried out. Every news item on VOK starts with the presIdent and the massive support he got In Gatundu, Baringo, Kisumu and Mombasa.

Amidst all these activities, a new chairman, a retired judge, is named to chair the constitutional review committee and 10 more niembers, five of them well known sycophants., are also appointed.

Singling out the Press and the criticism surrounding his announcement, he asks what was wrong with the Constitution in the first place, as there are sufficient freedoms In Kenya.

And then the arrests start. Critics are found to have filed "false mileage claims" and to have held illegal meetings. The defamation laws come in handy as do the sedition laws. Slowly a sense of impending doom approaches as the country is warned that there is a limit to patience and the insults that a man can take. Newspapers are banned and the security forces are beefed up. Detention without trials is tried out.

When all this fails to deter criticism, a quarrel is picked with Uganda and critics are accused of spying for Uganda.

Fear and silence will then set in.

Soon the culture of silence and fear Starts creeping and the Zambia scene Is comple4

175 The Propaganda War in the Constitutional Review Process MUGAMBI KIAI AND WILLY MUTUNGA

The propaganda war is heating up in the constitutIonal reforms process in Kenya. The Raila Odinga-led Parliamentary Select Committee began the week with a public relations masterstroke, a photocopy from the book of Paul Josef Goebbels, the Nazi propaganda chief. This was through the confident announcement by local government minister, Joseph Kaniotho, that Archbishop Ndingi Mwana aNzeki would shortly be meeting the Parliamentary Select Committee. This statement was very deliberately meant to indicate a capitulation of resolve on the part of the religious leadership of the rival ufungamano Initiative on constitutional reforms. Very masterly; even Goebbels would be proud.

It was also another example of the extensive use of propaganda by the Moi-KANU regime and its lackeys to discredit the Ufungamano Initiative and claim legitimacy for itself. There are various examples of these and a few can be looked at.

Notice, for instance, the watchdog mutterings of the KANU group whenever it is asked why the Parliamentary Select Committee review process has failed to be inclusive of all the interests in Kenya. KANU stated that it is protecting Kenyans from 'amorphou's and self-appointed groups calling themselves civil society' and would be abdicating its authority to lead if it did not take charge of the review process. Clearly, it interprets the role of an MP as one of unilateral and exclusive governance and leadership much in sync with its current autocratic style of government.

Yet the Mi-KANU regime had initially recognised civIl society groups as direct actors in constitutional review and even engaged them in the lengthy negotiations at both Bomas of Kenya and Safari Park to arrive at the Constitution of Kenya (Review) Act. With hindsight, this was only due to political expediency rather than a firm commitment to involve wanandii from all walks of life in the determination of their governance structure. Moreover, the fact that the government has stated that it would be more comfortable with Maendeleo ya Wanawake than the Women's Political Caucus as a stakeholder makes one wonder whether or not KANLi is cognisant of the fact that Maendeleo is a civil society group.

Another propagandist contention that the regime has made perpetual use of is the assertion that for the Constitution to be ultimately legitimate, It will have to be ratified by Parliament. The argument here Is that any draft that the Ufungamano Initiative crafts will still require parliamentary sanction; making the Ufungamano Initiative ibordinate to the Parliamentary Select Committee. Conversely, they are sayIng that ment can force an undemocratic Constitution down the throats of Kenyans just

176 because they are "the supreme law-making institution."

Nothing could be further from the truth. Ugandan columnist Charles Onyango Obbo has correctly observed elsewhere that "The credibility (legitimacy) of the Constitution is. - . its capacity to command (voluntary) broad observance and respect - even from those who do not agree with it. In other words in its politics." The apprehension, suspicion and hostility which Kenyans are treating the Parliamentary Select Committee is clearly a test of not only its legitimacy but also that of whatever document emerges from its work.

Furthermore, the most recent constitutional developments in Kenya would indicate that it is not Parliament but wanQnchi who dictate what Parliament passes as constitutional amendments. Rewind to December 1991. Did Parliament not rubber- stamp a decision to expunge Section 2A from the Constitution following pressure from wwijiku that Kenyans would not accept srngle-party dictatorship despite the strong reservations of Kenya's leadership with even the President expressing his dissatisfaction with this amendment to date?

Now fast-forward to 1997. Despite its inherent weaknesses, the now-disgraced IPPG reforms package still managed to pass constitutional reforms that the government - and by extension Parliament would not even countenance just three months prior. Again, this was due to popular agitation from Wanjiku.

We should take note that these two instances in which Parliament was a mere rubber- stamp facilitated the enactment of constitutional amendments and not a full review of the Constitution. The latter is a more profound, prolonged and engaging process and hence it is incorrect for one to then argue that Parliament as opposed to Wanjiku is the sovereign.

It should be clear that should Parliament ignore or refuse to pass those constitutional reforms that Waqiku desires, it will be signing Its own death warrant. For rather than allow but?ge to stand in the way of democratic change. Wanjiku will simply exercise her right to recall it and wind it up.

And let us no longer labour under the mistaken notion that it is only parliament that can legitimize a new Constitution in Kenya. Constitutional theory knows of such rnechan isms of ratification as constituent assemblies 1 national conventions 1 referendums and plebiscites, which have even more moral authority to legitimize a new Constitution.

This is because they are more representative than Parliament. Kenya's women stand at 52% of the citizenry. Yet there are only 6 women par]ianientarians The political opposition represents two-thirds of Kenyans, yet they are in a minority in Parliament. Facts such as these unmask KANU's insistence that Parliament is representative of all 1Cenyans and makes its position on this issue spurious. Indeed, the definition o "representative" found in KANU's politIcal dictionary mocks the true definition of term. 177 According to KANU, Wnfiku does not know the Constitution well enough to reform it. Notice, for example, the way the President will always state that those calling for reforms do not even know whIch section(s) they want to reform. A quick response to this Is that the term "constitutional review" means that it is the whole Constitution that needs to be reformed.

Moreover, there is credible evidence indicating that not all waheshimiwas know the chapter and verse of the current Constitution. While in Vihiga some time back, the President himself, In an attempt to prove that Wanj&u is unaware of Constitutional provisions, wondered aloud if the assembled crowd knew what Section 2A statesl

The irony here is that some in the gathered assembly were quick to notice that the President had somehow forgotten that Section 2A was consigned to the dustbin of history In the last century. I'f mtukufu does not know, then there is a question as to what moral authority he has to question Wanpku's knowledge or ignorance on katibu. The upshot is that constitutional experts or none, no one can claim to have sole, exclusive and complete knowledge of the Constitution.

And talking about constitutional experts, It is interesting that the Parliamentary Select Committee is Inviting foreign ones at the expense of local ones, the majority of whom have urged them to embrace the prInciple of Wan] Iku as the sovereign and disband. Is the Parliamentary Committee not now turning to its foreign masters, a charge which the Moi-KANU regime fondly makes against those critical of it?

And there is a question of the importation of ideas, especially when there is a local resource base that Is bankrupt. Why should we use expatriates - or mtumba depending on your viewpoInt - if we have a cheaper and better home-grown resource? Clearly, in the case of constitutional reform, it will only sound the death-knell to the constitutIonal industry. -

The constItutional industry in Kenya is in peril today. But this is not because there are two competing processes that reflect divided visions, missions, objectives and ethos. it would be useful for those calling for the merger of the two initiatives to give careful consideration to this fact. Much as the differences between the two will naturally cause some tension in Kenya, their underlying philosophies are as different as chalk and cheese and can hardly be dovetailed.

And there is nothing inherently bad, repugnant or obnoxious with this. Indeed, it is what the free market of ideas is all about. ltshould be encouraged - rather than discouraged - that the divergent visions, missions, objectives and ethos of the two initiatives are put to test in the Kenyan market. There is an apt Kiswahili proverb for E this, "K!zurt chajiuza, kibaya chajitenibeza." (The good sells while the bad remains on the shelf). And if done under the rules of fairness and equity (which should be uaranteed by the state), this only leads to a strengthening (and not weakening) of e nation.

cyinka reminds us that, "The greatest threat to freedom is the absence of Ii 178 criticism. The Initiation of the Ufungamano initiative was a criticism of the Mci- KANU regime's patrna!istIc habit of interfering with the sovereignty of Wwjiku. While the ufungamano initiative calls for a change to the status quo and an explicit recognition of Wanj&u as the sovereign, the Parliamentary Select Committee is clearly wedded to maintaining the same st,tus quo and a governance structure where the tail wags the dog. These positions are poles apart, so on what principle or basis should there be a merger?

The press has correctly recently pointed out to the ParUamentary Select Committee that rather than ascribe the bad publicity it is receiving to the fourth estate, the Committee needs to explain itself to Kenyans. And one can see their predicament given that they are so used to talking at people rather than with them.

Even more immense for them, however, will be the task of extrIcating the Committee, in Wanjiku's eyes, from the capture of the KANU regime. This is because the Committee must not only be viewed as an independent body but also be seen as a defender of the cItizen against the fiat of the ruler. This is the dichotomy between "peopIe-riven" and firnbo-driven." As matters stand, the Parliamentary Review Committee can only be seen as an attempt by the Moi-KANU regime to perpetuate itself, hence guaranteeing Kenya another molilennium.

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179 Aj A Vindication of Wunjiku's Claim to the Constitution MUGNI KIAI AND WILLY MLJTUNGA

.the power of a mechanic in a garage to service and repair a vehicle cannot be extended to mean the power to design and create a new car. Rev. Mutava Musyimi, Jaruary 2000

The debate on who should facilitate the constitutional review process is now a two horse race between either Parliament or the Ufungarnano Initiative, whIch is headed by religious leaders. To the pundit, the ideological variance between the two is that while Parliament is in reality guaranteeing a "people-drivIng" review process where Parliament is always in the drivIng seat of the process, the Ufunganiano lnitiative promises to be "people-driven" with the inclusion of every mwananchi in the entire process. The political animal would categorise them as flmbo-driven" and "Wanjiku- driven respectively. -

The religious leaders spearheading the Ufungamano Initiative are very clear that constitutional review belongs to Wanjiku. On the other hand, the RaJia Odinga-led Parliamentary Select Committee stated that non-parliamentarians had no business in facilitating the constitutional review process because this was the exclusive mandate of Parliament. They ignored the consensus achieved in Safari Park that resulted in the Constitution of Kenya (Review) Act much to the dismay of those (for lack of a better word, they were called stakeholders) who had painstakingly come to this consensus.

Not only had one year been lost but also the political goodwill that the various interest groups had cultivated throughout the protracted negotiations. It is ironical that Raila himself had initially accepted that all stakeholders should be involved In constitutional review and gone as far as initiating a parliamentary motion calling upon Attorney- General Amos Wako to reconvene the Safari Park actors to resolve the impasse that resulted from the failure of political parties to agree on who their nominations for the Constitutional Review Commission would be Whatever transformed democratic Paul into autocratic Saul on the road to katiba rnpya?

This ideological defection notwithstanding, the religious leaders have not been swayed by the empty argument that only Parliament has the exclusive sayso on matters of katib. To dissuade them from their resolve, an oft-used tactic has now been revisited by the establishment: the reminder to the clergy that theirs is a spiritual cafling and that matters temporal and political belong to politicians

ishop John Nue, in a stern rejoinder to this, c1uoted a famous bishop as folIows en I feed the poor and take care of the hungry, everyone calls me a saint, but

L 180 when I ask why (there is poverty and hunger), I am called a revolutionist. When we as Bishops see the suffering and oppression of our People and keep quiet, we are called good boys, but when we ask why people are denied theIr rights, we are called anti- government and antiestablishment.

The irrefutable nexus between religion and politics is very apparent to the religious leaders and they have rejected political paternalism. Moreover, they have understood the pretension of the regime, which heavily relies on them to resolve the political messes it authors, such as the unresolved pay dispute with teachers that the government is embroiled in.

And the religious leaders are also relying on religious authority from the Bible. Qur'an and Gita to justify their stand. Supkem official Ibrahim Lethome quoted the Qur'an's call that for people not to oppress as well as to resist oppression while Usha Shah of the Hindu Council quoted the Gita on the need for all of us to awake the God in us. Bishop Njuc is also clear on this point, "speaking against any injustice in the country is speaking against evil." And isn't the calling of religious leaders to speak ainst evil?

This moral pedestal that the religious leaders are claiming is very crucial. They are saying two things: firstly, that they will not allow themselves or their mandate to be defined for them by any political actor and secondly, that they are willing to hold the state answerable whenever it rubbishes its moral authority.

What is interesting for the observer is that the Mol-KANU regime's botched attempt to limit religious leaders to pulpit advocacy not only lacks any theological basis nor juridical foundation but is also made by a regime that has miserably failed to properly define the appropriate politics for an under-developed and under-performing nation. So what political authority do they have to arrogate to themselves the right to bar religious leaders from undertaking a project that promises national salvation while they themselves cannot even identify with the interests of wnjiku?

It is because of Wanjiku that the religious leaders have taken over the constitutional reform process. indeed, It cannot be ignored that this is by far their most radical project: they have moved from the long-held perception that theirs was a purely reconciliatory, mediatory or arbitrational role. But the regime has been drinking wine and offering Wanjiku only water so they are perfectly justified to abandon this reconciliatory role and demand that there is a change in this arrangement

The constitutional review process is a social process and not a legal one It is constitutive and not legislative. The fact that a constitution like Kenya's does not expressly recognise a "people-driven" constitutional reform process will never negate the legitimacy of that process. Matters of law and matters of justice should never be confused: a law that is unjust will never be legitimate just as justice that is illegal will always be legitimate. In apartheid South Africa's statute books all discriminatory provisio though legal, were never legitimate and were continuously resisted worldwide.

181 And if Parliament- does not understand this, it is the more reason why Wanjiku has to show them the way forward. The move by the Raila team to cultivate the support of foreign .donors in Its efforts to ground the democratic take-off of Wanjiku will also serve to warn Kenyans on the extent to which the regime will strive to maintain the stcitus quo.

KeJTyas dip1omatc partners must be very careful here. For years they have gone as far as coining and insisting on suth principles as "accountability." "transparency checks-and- balances" and so on. Whether they were merely paying lip-service to these terms remains to be seen. However, should they refuse to support Wanjiku their hypocrisy, perfidy and double-speak will be revealed. For what greater accountabflity or transparency is there than to recognise the sovereignty of Wanjiku?

Any neutral observer can surely see that to allow Parliament to exclusively carry out refdrms wiJl•not- break the harrowing paradigm of the rule of the tnhe5hlmiwa. And this will only absolutely guarantee that those millions of tax dollars, kroners, yens lircis or euros that donors continuously sink into the Kenyan economic cesspool will continue to pilfered: the donors will continue to pour water into a broken pot.

The best they can do is to keep out of this process if they are unwilling to cast their die with Wunjiku. l'enyans will financially support whichever process they feel will vindicate their sovereignty and rights. And given the representative capacity of the religious kaders, we are in no doubt about which process this will be.

The position of the press will also be crucial in the constitutional reform process. it becomes worrisome when one looks at headlines that suggest that politIcal leaders are being snubbed by religious ones1 whereas the fact of the matteris that there already exists an agreement that the role of the forme.r - as with every other stakeholder - is supportive and secondary to the facilitative one of the religious leaders. is there an attempt in the media to introduce division? Is there an attempt from the fourth estate to rock Wanjiku 1s boat?

Clearly such attempts will only multiply with time. But for the moment we conclude by noting that Parliament in Kenya is the deformed child of very flawed elections, whkh condemn the representatives of two-thirds of Kenyans to parliamentary minority. An unknown Kenyan once wrote that if elections could bring change, they would be illegal. The same would apply for bunge. I I I

lIIIIII1lh. 182 G. Comparative Political Analysis Though Shalt Personally Serve the President with the Petition: Commandments for the Election Petitions MLJGAMBI KIAI

At the official swearing in ceremony of Kenya's President Moi for his present term of office in early January 1998, uganda's president Museveni aimed a cheeky broadside at the Kcnyan political opposition. At the time, the Kenyan opposition was loudly complaining of massive electoral fraud and rigging, ensuring MoPs return to power having secured 2,445,801 votes against second placed Mwai KibakPs 1,895,527 votes.

Speaking in Kiswahfli, Museveni told the gathered crowd at Uhuru Park in Nairobi that he was puzzled about accusations of vote rigging in the Kenyan ele&ions. Museveni argued that this was because if Moi had stolen votes, how come he had failed to steal those that the opposition had garnered, which came to a combined total of around 60%? In short, if you were to steal an election, why would you not steal it completely?

Some might argue that this was a sneak preview of what transpired in Uganda's March 12, 2001 elections. Indeed, the wider observation expressed is that although Museveni was destined to win despite the best efforts of his opponents, the margin of his victory indicated massive electoral fraud. Was the Ugandan presidential erection stolen? To echo Charles Onyango Obbo, whodunit?

That is the question that Dr. Kiiza Besigye wants the Supreme Court of Uganda to determine following the petition he filed on March 23, 2001. Although the electoral laws of Uganda and Kenya may be different, the politics of the two are similar and hence, Kenyans will be forgiven if they express pessimism at the probability of success of this petition.

The Kenyan experience has been that it is not really the law but the prevailing political equation that strangulates election petitions in Kenya. This has led to a situation where the courts rarely hear and consider the full substance of election petition cases, invariably electing to instead strike them out on procedural grounds while avoiding the substance of the petition

On the last occasion where the current leader of the official opposition Mwai Kibaki s petition was similarly struck Out by firstly, the high court and subsequently by the court of appeal, he was represented by respected Nairobi lawyer Plieroze Nowrojee. ociate of Mr. Nowrojee's, Mr. Andrew Wandabwa, after studying the whole n petition scene in Kenya, concluded that it is the courts and not the Law that lify election petitions in Kenya. He was again voicing the concern that It is not L 184 a bad election petition that loses out; rather it is a bad interpretation of the obtaining electoral law by the courts.

In attempting to advance the course of East African legal and electora! jurIsprudence by a notch or two, there is hence a need to get the correct law I (and not the politically correct courts) to be the determinant of electIon petitions. And this Is why, despite the fact that the Kenyan and Ugandan electoral laws may be poles apart, we need to craft a few do's and dcn'ts or commandments to minimize the probability of 0r Besigye's petition being struck out followIng a prelIminary objection.

The first commandment arises from the Kibaki case: Thou shalt personally serve the President with the petition. Kenya's court of appeal was unequivocal on this poInt, stating "we are satisfied.that as the law now stands only personal service will suffice in respect of election petitions:

Arguments by the petitIoner against this position were countered by the same court thus:"...it has been contended that the.Presiderit is surrounded by a massi1'e ring of security which it is not possible to penetrate... (however) no effort to serve ... (the president) was made and repelled."

The second commandment is that Thou shalt personall,v sign the petition This was the eventual ruling of the Kenyan judiciary in a case where the runner-up in the 1 992 general election Kenneth Stanley Njindo Matiba petitioned the court to annul that election. Due to physical infirmity - which was caused by Matiba's detention without trial by Mol in 1 990 for his vocal advocacy to have multi-partism re-Introduced In Kenya - he did not have the power to append his signature on the petitIon. Instead, Matiba had his wife Edith, who had his power of attorney, sign the document. The presIdent successfully applied to have the petition struck out on this ground.

Thirdly, Thou shalt not quarrel with the size of paper on which the President liled his nomination papers. The case of Daniel Toroitich amp Moi-v-John 1-f arun Mwau testifies to this. Mwau, another election loser in the December 29, 1992 Kenyan general elections, unsuccessfully applied to the court to nullify the election results because, among other reasons, the President did not present forty standard sheets of foolscap papers...on nomination day, as recuired ... by the Constitution.'

Mwau argued in the Court of Appeal that he had raised several issues in his petition in the High Court as the basis of this contention that the President's election should be nullified. However, he claimed that the High Court had not considered any of the other = issues but instead reected his petItion only on the basis of the issue of the President's nomination papers. The Court of Appeal refused to intervene for legislative reasons. ai Commandments or none, there are those who wilt argue that courts will still find fault in electIon petitions against a sitting President, even if they are flawlessly designed and proceduraJly sound. They argue that this is because the courts will always wis to avoid hearing the chapter and verse of the petition, due to the clear politi ramifications this entails. 185 4 a bad election petition that loses out; rather it is a bad interpretation of the obtaining electoral law by the courts. in attempting to advance the course of East African legal and electoral jurisprudence by a notch or two, there is hence a need to get the correct law I (and not the politically correct courts) to be the determinant of election petitions. And this is why, despite the fact that the Kenyan and Ugandari electoral laws may be poles apart, we need to craft a few dots and don'ts or commandments to minimize the probability of Dr. Besigye's petition being struck out following a preliminary objection.

The first commandment arises from the Kibaki case Thou shalt personally serve the President with the petition. Kenya's court of appeal was unequivocal on this point, stating ",..we are satisfied ... that as the law now stands only personal service will suffice in respect of election petitions."

Arguments by the petitioner against this position were countered by the same court thus:"...Et has been contended that the...President is surrounded by a massiv , rirtg of security which it is not possible to penetrate... hoverer no effort to serve ... (the president) was made and repelled:'

The second commandment is that Thou shalt personally sign the pet Won. This was the eventual rulIng of the Kenyan ludiciary in a case where the runner-up in the 1992 general election Kenneth Stanley Njindo Matiba petitioned the court to annul that election. Due to physical infirmity - which was caused by Matiba's detention without trial by Mo! In 1990 for his vocal advocacy to have multi-partism re-introduced in Kenya - he did not have the power to append his sIgnature on the petitIon. instead, Matiba had his wife Edith, who had his power of attorney, sign the document. The president successfully applied to have the petition struck out on this ground.

Thirdly, Thou shalt not quarrel with the size of paper on which the President filed his nomination papers. The case of Daniel Toroiticfi arap Moi-v-Jo fin Harun Mwau testifies to this. Mwau, another election loser in the December 29, 1992 Kenyan general elections, unsuccessfully applied to the court to nullify the election results because, among other reasons, the President did not present forty standard sheets of foolscap papers ... on nomination day, as required ... by the Constitution.t

Mwau argued in the Court of Appeal that he had raised several issues in his petition in the High Court as the basis of this contention that the PresIdent's election should be nullified. However, he claimed that the High Court had not considered any of the other = issues but instead rejected his petition only on the basis of the issue of the President's nomination papers The Court of Appeal refused to intervene for legislative reasons.

Commandments or none, there are those who will argue that courts will still find fault in election petitions against a sitting President, even if they are flawlessly designed and procedurally sound. They argue that this is because the courts will always wis4 to avoid hearing the chapter and verse of the petition., due to the clear ___ ramifications this entails. 185 The rationale behind this is simple: courts have rarely been bold enough to take the political heat that results from taking on a sitting Head of State and when this has happened, they have come off the worse from the resultant altercation, as most recently evidenced in Zimbabwe.

Others will go a step further and assert that whether or not one passes the stage of procedural challenge and delves into the substantive parts of their evidence, a judicial result favouring the incumbent is a foregone conclusion, again for the same reason. After all, the incumbent, to counter the petitioner, will also tender evidence to show that his supporters were also brutalised, violated and intImidated, making a whole circus of the judicial proceedings.

But all that remains is in the realm of conjecture. The point Is that a trial to secure justice and equity must be made at all times. This is why 1 whereas conventional wisdom states that voting would be illegal if it could bring change, we still revert to the vote with its attendant pomp and pageantry, vim and venom. And also, of course, with a full complement of international election observers, internatioria? media practitioners and opinion po1i experts. We dare continue hoping.

h66, 186 Counsel of a Neighbour: A Few Extracts from Justice Kanyeihamba's Talk to the LSK MUGAMBI KIAI

Supreme Court of Uganda Justice George Kanyeihamba, a supremely gifted and articulate public speaker, was in Nairobi close to a fortnight ago at the invitation of the Law Society of Kenya (LSK). He came to share ideas on constitution making., given his considerable experience and insIghts during the making of the current Ugandan one. it is near impossible to accurately summarize Justice Kariyeihaniba's delivery to the LSK here. However, there were some salient points on some of the dos and don'ts of constitution making which will be of enormous benefit to all of us if sh4red widely and strIctly adhered to.

Indeed, some of the seemingly intractable problems facing Kenya's constitutional review process would unravel themselves if those directly involved were to listen to Justice Kanyeihamba. For instance, on the issue of who makes a constitution Justice Kanyeihamba spoke at length on how the Ugandan parliament did not have a role in the constitution making process. It instead left it to the Constituent Assembly, a body established for this purpose and representative of all quarters of society.

As Kenya struggles with a merger of the two competing constitutional reforms processes, this feedback should provide a sound and constant ingredient in the political equation to provide for any constitutiotial coagulation: the principle of inclusiveness.

Justice Kanyeihamba went on to offer advice on when a democratic constitutional reform process should take place and insisted that this is only possible when there is an already existing enabling environment. This is because, clearly, constitutions made in times of war and other forms of civil strife and uncertainty fail to deliver due to the fact that they do not include or Incorporate the diverse vIews that reflect a modern nation state.

Again, there is a very direct relation to this view to the prevailing political environment in Kenya. Firstly, given recent incidences of escalating political harassment of government critics, especially those affiliated with the lames Orengo-led A4uungano wa Mageuzi, it is impossible to guarantee the adherence to good JustIce Kanyeihamba's advice. Secondly, in the face of the looming general election in Kenya in 2002, the issue of I existence of a civilized political environment devoid of intrigue, jockeying and even violence is doubtful.

197 It was while describing who was who in the Constituent Assembly in Uganda that Justice Kanyeihamba mentioned that the army was allowed to participate. In Kenya, this seems to be another no-go zone. When the National Convention Executive Council (NCEC) made a suggestion about a year back that the Kenyan army should also be included in the constitutional review talks, they were stridently pilloried from all quarters.

Indeed, following this suggestfon one cannot forget a political commentator at the time telling Professor Kivutha Kibwana, spokesperson for the long-suffering NCEC, that he had been up in the ivory tower for so long that it had affected the circulation of oxygen to and in his head. Justice Kanyeihainba Was also emphatic that affirmative action needed to beapplied in all constitutional structures. In this respect, he related how in Uganda some male chauvinists had tried to trivialize the lsue by saying that this would mean that mirrors would have to be increased at public cost, since after all, women are known to frequently throw admIring glances at their own reflections.

However, Justice Kanyeihamba (an honorary member of the Federation of Woren Lawyers-FIDA) was happy to report that, rather than lower standards1 the presence of women had raised them. He gave the example of the Ugandan parliament where, given men's vaIn need to constantly impress women, the level and standard of debate had gone up.

For those in Kenya who are constantly slammed for being political busybodies clothed as civil society, Justice Kanyeihamnba also offered some respite. He said that It was his view that it was wrong to insert Clause 269 in the Uganda constitution 1 which confirmed the elevation of the National Resistance Movement as the only vehicle for political mobilization and put political parties in cold storage.

In short, he regretted the constitutional limitations of the freedom of assembly and expression by the Uganda constitution, a feature that also con5tarnly questioned the democratic participation of fellow citizens by inquiring whom they represent.

Justice Kanyeihamba went on to support the formation of a Supreme Court in Kenya, saying that while this will certainly be an expensive addition, it does ultimately lead to the better administration of justice and application of the law.

The ovation Justice Kanyeihamba received indicated that his message was well received. Most likely, it was a case of preaching to the already converted. However, it did give a new and fresh impetus to the commitment to have an all-inclusive, open and democratically principled constitutional review process.

The challenge now is how to pass this profound message on to the unconverted. This is tricky indeed, for in analogous circumstances, the Israelites hung lesus Christ on a tree and called him a thief. We do live In Interesting times. hh6h" 188 It was while describing who was who in the Constituent Assembly In Uganda that Justice Kanyethamba mentioned that the army was allowed to participate. In Kenya, this seems to be another no-go zone. When the National Convention Executive Council (NCEC) made a suggestion about a year back that the Kenyan army should also be included in the constitutional revIew talks, they were strIdently pilloried from all quarters.

Indeed, following this suggestion, one cannot forget a politIcal commentator at the time telling Professor Kivutha Kibwana, spokesperson for the long-suffering NCEC, that he had been up in the Ivory tower for so long that it had affected the circulation of oxygen to and in his head. Justice Kanyeihamba was also emphatic that affirmative action needed to be applIed in all constitutional structures. in this respect, he related how in Uganda some male chauvinists had tried to trivialize the issue by saying that this would mean that mirrors would have to be increased at public cost, since after all, women are known to frequently throw admiring glances at their own reflections.

However, Justice Kanycihamba (an honorary member of the Federation &f Women Layers-FIDA) was happy to report that, rather than lower standards, the presence of women had raised them. He gave the example of the Ligandan parliament where, given mens vain need to constantly impress women, the level and standard of debate had gone up.

For those In Kenya who are constantly slammed for being political busybodies clothed as civil society. Justice Kanyeihamba also offered some respite. He said that it was his vIew that It was wrong to insert Clause 269 in the Uganda constitution, which confirmed the elevation of the National ResIstance Movement as the only vehicle for polItical mobilizatIon and put political parties in cold storage.

In short., he regretted the constitutional limitations of the freedom of assembly and expression by the Uganda constitution, a feature that also constantly questioned the democratic participation of fellow citizens by inquiring whom they represent.

Justice Kanyeihamba went on to support the formation of a Supreme Court in Kenya, saying that while this will certainly be an expensive addItion, it does ultimately lead to the better administration of lustice and applIcation of the raw.

The ovation Justice Kanyeihamba received indicated that his message was well received. Most likely, it was a case of preaching to the already converted. However, it did gIve a new and fresh impetus to the commitment to have an all-inclusive, open and democratically prIncipled constitutional review process.

The challenge now is how to pass this profound message on to the unconverted. This is tricky indeed, for in analogous circumstances, the Israelites hung Jesus Christ on a I tree and called him a thief. We do lIve In interesting times. -.

188 A Tale of Continuing Struggle in Two Countries, Kenya and Zimbabwe: Reflections on the Just Ended Referendum in Zimbabwe WILLY MUTUNGA

Whenever there is an election or a referendum, there is always some spoken or written words to remember; some jokes at the expense of the dictators; some speeches to recall; some rIch grapevine; questions on who is and who is not patriotic; some cartoons to treasure; some dictators of the yesteryear surfacing as todays lIberators of the people; and a T-shirt that you may never not forget.

Sample the following from Zimbabwe: 1MF in Zimbabwe means. "irs Mugabe's Fault". I was told Ian Smith was of the opinion that the distinct difference between him and Mugabe was, in his words: "Yes, I hated Africans. loved white Zimbabweans, but I loved Zimbabwe more. Mugabe hates Africans, Whites, everybody and above all he hates Zimbabwe." When it carrie to what some Zimbabweans call 41Grace the Disgrace" the rich Zimbabwean grapevine has it that the First Lady has spent four millions pounds at Harrods; SS in Zimbabwe means "Settlers and Sell-outs." You see both NCA and MDC are called "sel1-outs by ZANU PF and compared to the Muzerwas and Chiraus of the pre-independence period. The T-shirt is an interesting one. I see this woman in Bulawayo. She has a black T-shirt with the words "Rob Mugabe" in front and the moment she turns the words at the back are, "Before he robs you." Elections and referenda have now become robberies.

While in Zimbabwe I had to stop by one of the roads and witness the presidential motorcade, something Kenyans are familiar with. The usual fast sleek cars, the uniformed outriders making the usual gestures and their motorbikes making the usual noises. Two Zimbabweans watched the motorcade with me, and after the motorcade was gone, one turned to the other and chuckled, "There goes Bob Mugabe and the Waiters."

Zimbabwe had its referendum on March 1 2-! 3, 2000. Zimbabweans were asked to approve a draft constitution that had been drafted by a Commission handpicked by Mugabe (of the 400 members of the Commission, 300 were ZANU PE members of = Parhament while the remaining 100 were party members. 1 some people akin to what we have come to call in Kenya, KANU DAMU!), a draft that Mugabe had "corrected and clarified", a draft that had in very concrete ways subverted the will of the people as expressed during the rushed outreach programme prepared by this partisan Commission; and an outreach programme that totally ignored the need for mass civil education in constitution-making. The High Court of Zimbabwe ruled in an applicatio to stop the referendum that under the Act the Commission was set up under

199 Commissions of Inquiries Act) Mugabe could "correct" and "clarify" the draft constitution. The Court also ruled that under the Act Mugahe had the power to reject the entire draft constitution and replace it with another draft if he so desired. Believe me this is the most striking example of staunch positivism, "the law is the Law is the law" and the inability of Judges to cha I lenge presidentia' authoritarianism by invoking more democratic tenets of the English and Commonwealth jurisprudence. If read literally, of course, you can identity such powers. The questions that the Judge did not ask himself is whether this waste of resources is legal and whether certain national projects should be at the whim of the head of state. Is the abuse of the power by the president unchallengeabJe in the courts of law? Which legal theory is being used for this unlimited power? The draft constitution was rushed through the provinces without any civic education being undertaken. The NO vote won by a margin of W%.

We draw very interesting parallels between Zimbabwe and Kenya Here are a few; Both were British colonies with a powerful white settler community (in the case of Zimbabwe this communIty uni!ateraUy declared independence from Britainiii 1 95); although both had their lands taken during the invasion and conquest by the Brittsh, under independence settlements they bought the land from a system that not only had grabbed the land for free but had also exploited it for many years: both countries waged armed struggle for independence, and in the case of Zimbabwe the armed strugglers negotiated for the ceasefire and the transfer of power; both countries negotiated the transfer of power at Lancaster and emerged with liberal democratic Westminster model constitutions; both countries still mediate with various intereStS over land policy and have not done much to address the issue of landlessriess and poverty. I guess one can go on and or', indudtrtg the fact that both countries boast of NCAs.

At the presidential level, both presidents of Kenya and Zimbabwe are over 75 years old, are gay bashers, are very weafthy and healthy, they are both in the DRC in different forms; they both have had different ideological and political backgrounds but both have compromised in presidential authoritarianism. On this personal level one can go on and on.

The constitution-making process in Zimbabwe has been spearheaded by the civil society. Seeking through this process a new political settlement, the civil society expressed opposition to the status quo. While in the case of Kenya the ruling party and the president kept on saying that there was no constitutional crisis in Kenya (and kept of breaking the promises of a new constitution whenever there as an admission of such crisis), Mugabe did not allow the civil society initiative, called the National Constitutional Assembly, time to conølidate. With the help of intellectuals, some of whom had studied the Kenyan experience well and others who were deserters from the NCA, Mugabe was able to seize the constitutional initiative. Comparable to our Saitot! Committee of I 990 and Raila Committee of 1999, Mugabe was determined to me up with a political settlement that kept him in power. With plenty of resources, internal and external 1 the Commission was able to come up with a draft

190 constitution. The NCA, too, has had local and external resources and went to the provinces and produced its draft constitution. The NCA charged that the Constitutional Commission's (CC) draft did not reflect the will of the people and campaigned for a NO vote in the referendum.

Zimbabwe did not have the experience of a referendum since independence. The process adapted was simply the production of the national identity card to enable one To vote. The voters register was not used (except for aliens) and Zimbabweans of over 18 years could vote anywhere in Zimbabwe. The process was fair, free and peaceful, according to our observer mission, we did not see much and we did not cover more than 75 constituencies, so our verdict is subject to challenge. I have heard the opinion expressed from Mugabe's corner that the referendum was peaceful, but not free and fair. The usually disenfranchised, youth had the chance to vote, and the chances of massive rigging, In the view of the observer mission, were rare. There was, however, one fundamental loophole in the process: the communicatIon between the polling stations and the Command Posts wIthin the grouped constituencies and at the provincial levels were not monitored at all.

This form of votIng (without reference to voting roll) could have caused Mugabe the loss of the referendum. There are, however, other plausible reasons.

The opposition to Mugabe should not be underestimated. There is a multi-racial and multI-ethnic middle class that is agitating for change. The white Zimbabwean farmers are also opposed to Mugabe over the land question. Afthough the 20,000 Zimbabwean farmers (0.! %) own 40% of the land and believe that land redistribution must take place, they are clearly opposed to Mugabe's redistribution process. Mugabe's process is one of sei2ure without compensation (unless the British Government pays the compensation) and the land most likely going to Mugabe's friends. There was in Zimbabwe a debate over why the peasants did not vote overwhelmingly YES to the draft constitution. There were even charges that the white farmers had persuaded the peasants and farm workers to vote NO. is it because they did not trust Mugabe's promises? After all, the redistribution that had been done so far had benefited the rich. Mugabe and his party had almost twenty years to do the redistribution and had failed to keep his promises. May be it was now time to let the issue be debated by the protagonists and see whether there was a government that can be trusted.

It is obvious that Mugabe has lost the support of the farmers who clearly have given him support for a while. The reasons are simple: Mugabe has ceased to protect those interests and the broad interests of the elite in Zimbabwe. The issue of commercial I farms in Zimbabwe also reflect very powerful financial interests in the name of banks and.other financial institutions. Ioreign interests are tied up with these domestic interests as in the case of Zimbabwe. Mugabe is adopting the rhetoric of nationalism to an audience that does not trust him on the land issue.

The Movement for Democratic Change (MDC) and the NCA movement have to addr this issue of land, At the moment the allegations are that they support the 191 farmers position (that these commercial farms were bought after Independence at market rates without interrogating the transfers themselves. Some of the transfers, it is argued, were simply between members of the same families). The fact that these farms have been also mortgaged to foreign finance capital brings an interesting dimension to the land question. Mugabe's nationalistic rhetoric can harm NCA and MDC if both do not come up with reasonable land redistribution policy.

Mci has not antagonised the landed gentry, multi-racial and multi-ethnic as it is. Lord Delamere, Moi, Biwctt, Njonjo, the Kenyatta Family, Ole Ntlmama, KIbaki, Njenga Karume, the powerful Asian-African groups and individuals and the rest of the walalahat (comprador bourgeoisie) family have had their properties protected. So has foreign finance capital that invested in those farms. Powerful minorities in Kenya have tended to support the ruling party. Whenever there has been the politically motivated so- called ethnic clashes such properties have never been challenged. indeed, it is the peasant farmer, the poor peasant, who has had his/her small holding taken and the meagre moveable property burned. Invariably these poor peasants have lost their lives. If the Gikuyu are not welcome in the Rift Valley, why are the farms ovtned by the Kenyatta family, MatIba, Kibaki, Nlono, Saitoti and Njenga Karume, to mention a few of these rich Kikuyus, not affected? If any raider marched on any of these farms, then they would face the wrath of the finance capital and maybe the wrath of the British army among other armies.

The press in Zimbabwe has solidly supported either change or the status quo without adopting the policies and tactics we see in Kenya of running with the hare and hunting with the hounds. Those papers that support change have done so consistently. The ZBC, the counterpart of KBC, solidly supports ZANU PF. Just like in Kenya, the OpposItion in Zimbabwe has seized the cities while the rural areas will invarIably be the ruling party's stronghold. The caveat hereis that we have argued in the case of Zimbabwe that the rural areas are seriously contested by the NCA, the MDC and the emerging support from the farmers.

The rejection of the draft constitution was both the rejection of the Lancaster constitution and the draft constitution. Mugabe immediately ruled that the Lancaster constitution would stay in place until the April elections. That constitution gives him a head start as he is allowed by it to nominate 30 ZAPU PF members of parliament. Mugabe can still manipulate the voters register, mobilise the rural folk and get a majority in parliament. I see this as an interesting political move Did Mugabe want a new constitution, or was he interested in diffusing tensions? Either result in the referendum was not a total defeat for him. You see the same parallels in the debate on the national consensus as reflected in The Constitution of Kenya Review LIke in Kenya, constitution-making in Zimbabwe is about succession, which makes the protect narrow and aggressive.

vote was a vote of no confidence on the Mugabe regime. Yet the MDC and ot press on this political advantage and force Mugabe's existence. No wonder

L 192 Jonathan lvloyo compared the NCA movement and its political expression, the MDC, to a male virgin, who on being told by the female counterpart she is ready, he would take of f with all kinds of excuses. Does the opposition at such crucial times find itself unable to rule? Does the civil society at that point recoil to its principle of non- partisanship? I got the impression that the MDC felt it should contest the parliamentary elections in April and prepare for the presidential election In 2002. It seems the opposition is aiming at some substantial numbers in parliament. It is also said that the candidate to challenge Mugabe is yet to emerge. Mugabe's withdrawal from the DRC could have been agitated at this time also. It was not.

The issue of free, fair and peaceful elections in AprIl is not being raised seriously The opposition, supported as it is by the powerful domestic interests, could win the election and set a confrontation between parliament and the presidency. Either way there Is definitely going to be a more powerful opposition in parliament. Whether it will perform better than its Kenyan counterpart remains to be seen.

Like in Kenya, the youth in Zimbabwe do not buy into Mugabe's glorificatin of the struggle for independence. The youth want jobs and a changed economic system. There seems to be solid support of the NCA by the youth. The MDC has a base in the trade union movement.

There has been the talk of possible military coup in Zimbabwe. There is also the view that it is not possible to stage a coup unless the regime supports it. Mugabe is still in the LDlC and facing the criticism of the public. He faces hard economic tImes and, like Kenya, he has his battles with the IMF and the World Bank. The economic situation in both countries is worsening and the stories of corruption are legion. Unlike Mugabe, Moi has fuel and the floods have not come back yet.

It would appear that In both countries political settlements and succession politIcs will be reflected in the constitution-making process. The process will still remain a political buffer to the option of armed struggle. But can this option be avoided when a peaceful, non-violent political settlement never seems acceptable to the ruling parties of both countries? Will these two presidents care about their legacy and abstract themselves from party politics and oversee a national transition? Will they allow the issue of succession and free, fair and peaceful elections to take place as a basis of their existence? will they consIder investing their wealth in their respective countries as part of their legacy? If both presidents accepted that there is need for a new leadership and oversee such a transition in an open and transparent manner, maybe this legacy would be worth their while. 1 have always wondered how useful it would be for Moi to invest his wealth in modcrnising the railway system, some great Nyayo Express that would create jobs and immortalise his legacy.

One would have hoped that the NO vote would give way to a new constitution based on the various criticisms that were levelled against the draft constItution. NCA and the Constitutional Commission (CC) have draft constitutions that canBA be basis of a dialogue on a possible political settlement. Mugabe has stuck to the La

193 constitution and the politics of winner takes alL" the curse of both Kenyan and Zimbabwean politics.

Zimbabwe's experience clearly shows that the regime is not interested In civic education at all. Like in Kenya, the firm control of ZBC means that ideas will never contend at the grassroots. What happened in Zimbabwe also raises the question whether donors are committed to consistent mass cIvic education. Of course this civic education is the parent of different messages, which the regimes in power cannot countenance. We will constantly pay lip servIce to civic education until a democratIc government takes over and undertakes continuous and consistent civil educatIon.

One final point about the draft constitution. The ZANU PF congress came up with its constitution weeks before the CC's draft. I have perused both and I am struck by the similarities. Are these not the same criticisms being levelled at the Raila Committee?

Constitutions have to reflect political settlements. In the cases of ZImbabwe and Kenya, the rulIng parties and the presidents do not want to negotiate any political settlemet. The game is one of staying in power. it may be an idea to focus on that concretely. It maybe an idea to think about an interim constitution and locus squarelyon succession, transitional lustice, free and fair elections. It does no harm to come up with a new constitution after conclusive process undertaken by the Ufungamano initiative. I refuse to believe that parallel processes are bad and disruptive.

I believe both Kenya and Zimbabwe are facing the birth pangs of positive democratisation. I do not see Mugabe or Mci stoppIng this process by whatever means they undertake. It is the truism of the darkest hour being the one before dawn.

L , 194

Kenya's 'Foreign' Foreign Policy WILLY MUTUNGA

When Dr. Njoroge Mungal was Kenya's minister for Foreign Affairs, Christopher Mulei described Kenya's foreign policy as one of "wait and see' 1 recall that Dr. Mungai attacked Mulei in the media. Mulel had also irked Dr. Mungal by suggesting that K'enyan foreign policy was a policy from when the late Joseph Murumbi had been minister for foreign affairs. Mulei had borrowed the words "wait and see" from Lord Asquith the 8ritish Prime Minister before the First World War, who, whenever he did not have an answer to a qucstion asked of him in parliament, always said. "I ask the honourable member to wait and seen. A policy of "wait and see" is no policy at aU. It is a rationalisation of protecting individual or class interests under the guise of national policy. it is a dangerou5 policy that exposes a natIon to ridicule and isoiatin.

And it can be repeated again here that the late Joseph Murumbi and Dr. Muriyua Waiyaki are the only foreign affairs ministers that history will record as having crafted and propagated some fragments of foreign policy. It will be remembered that the late Joseph Murumbi opposed vigorously the deportation of the late Malcolm X at the instigation of the first American ambassador in Kenya, William Attwood. Dr. Waiyaki will be remembered for his stand on South Africa when the likes of Charles Njonjo wanted to cultivate relations with apartheid South Africa. Dr. Waiyaki publicly said "over my dead body". Dr. Waiyaki kept Kenya in the family of civilised nations that opposed and abhorred apartheid.

The current foreign affairs minister is the most qualified of all the foreign affairs ministers Kenya has had. He is a brilliant lawyer with a doctorate in international law and rerations. He understands the New World Order (Disorder) very well and he is able to craft for the first time Kenya's foreign policy for all to see. It must be admitted that Dr. Bortaya Godana's first test. the Abdullab Ocalan case, whIch he failed miserably, shows that Kenya does not respect international law at all. It also shows that Kenya's foreign policy is still crafted at State House and it does not reflect national interests. Kerlyans still wait for Dr. Godana to tell them what happened in the Ocalan affair. We read about the Ocalan affair from other sources, yet our own mInistry for foreign affairs has the arrogance to ignore our questions on this issue.

We can give other issues where our foreign policy is not reflected and we are constantly being told to "wait and see". I will mention a few of these:

. The Great Lakes Crisis has been with us for quite a while now. I suspect only = Kenyan fortune hunters are in the Great Lakes Region because we have not been d otherwise. The point being made is that no one knows what our policy is on -. h warr there. There has been no policy stated and repeated for Kenyans to debate. jya has concrete economic interests in the area and some of the combatants L 196 Kenya's 'Foreign' Foreign Policy WILLY MUTLJNGA

When Dr. Noroge Mungai was Kenya's minister for Foreign Affairs, Christopher Mulel described Kenya's foreign policy as one of "wait and see". 1 recall that Dr. Mungaf attacked Mulei in the media. Mulei had also irked Dr. Mungal by suggesting that Kenyan foreign policy was a policy from when the rate Joseph Murumbi had been minister for foreign affairs. Mulel had borrowed the words "wait and see" from Lord Asquith, the British Prime Minister before the First World War, who, whenever he did not have an answer to a question asked of him in parliament, always said, "1 ask the honourable member to wait and see't. A policy of "wait and see" is no poiicy at alL It is a rationalisation of protecting individual or crass interests under the guise of national policy. It is a dangerous policy that exposes a nation to ridicule and isolatii.

And it can be repeated again here that the late Joseph Murumbi and Dr. Munyua Waiyaki are the only foreign affairs ministers that history will record as having crafted and propagated some fragments of foreign policy. It will be remembered that the late Joseph Murumbi opposed vigorously the deportation of the late Malcolm X at the instigation of the first American ambassador in Kenya, William Attwood. Dr. Walyaki will be remembered for his stand on South Africa when the likes of Charles Njonjo wanted to cultivate relations with apartheid South Africa. Dr. Waiyaki publicly said "over my dead body" Dr. Waiyaki kept Kenya in the family of civilised nations that opposed and abhorred apartheid.

The current foreign affairs minister is the most qualified of all the foreign affairs ministers Kenya has had. He is a brilliant lawyer with a doctorate in international law and relations. He understands the New World Order (Disorder) very well and he is able to craft for the first time Kenya's foreign policy for all to see. It must be admitted that Dr. Bonaya Godana's first test, the Abdullah Ocalan case, which he failed miserably, shows that Kenya does not respect international law at all. It also shows that Kenya's foreign policy is still crafted at State house and it does not reflect national interests. Kenyans still wait for Dr. Godana to tell them what happened in the Ocalan affair, We read about the Ocalari affair from other sources, yet our own ministry for foreign affairs has the arrogance to ignore our questions on this issue.

We can give other issues where our foreign policy is not reflected and we are constantly being told to "wait and see' I will mention a few of these 12 • The Great Lakes Crisis has been with us for quite a while now. I suspect only Keflyan fortune hunters are in the Great Lakes Re.gion because we have not been kto,l,d otherwIse. The point being made is that no one knows what our policy is on he war there. There has been no policy stated and repeated for Kenyans to debate, ya has concrete economic interests in the area and some of the combatants 196 are Kenya's trading partners. In this era of openness and transparency, why is nothing being said?

• The American military facilities in Mombasa were used during the gulf War, the Operation Restore Hope and are perhaps being used in the bombings currently going on in Iraq and Yugoslavia. As far as our government is concerned, these facilfties do not exist! We had to wait to read Smith Hempstone's book to get a confirmation that they actually exist. The government still keeps its silence on the issue. is it not right that a policy that may affect all citizens be spelt out and debated? If Kenya and the US are committed to politics of transparency and openness, why have the facilities been kept secret? How much is Kenya paid for these facilities? The argument of national security that is constantly waived whenever these questions are raIsed does not make sense. The reason it does not make sense is because it is only the Kenyan citizen who is denied this information Our counterparts, the Americans, know the facilities exist and have access to the agreements between Kenya and the 115.

• Currently there is a debate raging between the Law Society of Kenya and the American Embassy in Nairobi over the August 7 bombing of Nairobi. The Americans are very clear about their foreign policy. They are very clear about what they call the friendship between Kenya and the US. in most cases we get the Ingredients of Kenya's foreign policy towards the US from the Americans themselves. Is it not time that the Ministry of Foreign Affairs states and restates our foreign policy as events, issues, wars, and debates surface? Or does the government want Kenyans to describe what we see as Kenya's policy for them, the policy of "wait and see"?

What 1 have raised here is not new. Of the Kenyan politicians it can be said without doubt that Professor Artyang' Nyong'o is the leading politician in Kenya who understands the New World Order (Disorder) and constantly spells it out. Yet I am sure the KANU government in its wisdom would loathe seeking assistance from him. The world is changing. Soon there will be another New World Order when old empires will disappear and new ones will appear. Our foreign policy must reflect these changes that are on the horizon. It is clear that one area where the KANLI government has no idea at all is how Kenya will exist in the New World Order. For Kenya this is dangerous. We cannot afford a foreign policy that does not reflect our national interest. Our national interest has to be debated, confirmed and protected by all Kenyans What we have now are personal interests in the name of national interest. When we call for alternative political Leadership, we are saying that these fundamental issues, like foreign policy, need redress. We are saying also that the current political leadership is incapable of providing direction and guidance in these issues.

-I

197 AA I

hkLll, ~ 198 • 2. Commentary on Economic. and Social. Problems in Kenya 114 I

iL~ 200 A. Economic Issues Facing Kenya Not Enough Can Be Said About the IMF and the World Bank WILLY MUTIJNGA AND MUGAMBI KIAI

in the last elections In Uganda, we were told that a Ugandan formed a political party with a unique objective of bringing the British back." The party did not succeed in its objective for many reasons, but as one Ugandan observed, the British had never left Uganda! Recolonisation started on the eve of independence and very few people observed the coming in of neo-colonial governors in the names of IMI and World Bank. What has sometime been called multhateralisation was sImply domination by a new global order that reflected an international economic order that had been consolidating itself since the 1 870's. I Not enough can be written about the IMF. the World Bank, international trading, industry and financial corporations and their impact on fundamental changes In poor countries like Kenya. Since the resumption of aid by the IMF and the World Bank, we have seen critical, and at times, brilliant analysis of the recolonising mission of these institutions. What has been lacking in this analysis is what has to be done to bring aboLit fundamental changes in this country, the international and national domination notwithstanding. What has been de-ei'nphasised is the role that the vested national interests have played in this domination. It is laughable to argues as has been implied In some analyses, that our salvation from the IMP and the World Bank is the nationalist rhetoric of the Moi-KANU regime There are serious national vested interests in our recolonisation, and they are as much the enemy to our development as the IMP and the World Bank.

The critique of the IMF and the World Bank seems to echo our critIque of the national system. We either criticise or we abuse the national and international status quo and we offer no solutions that are crucial for fundamental change. The IMF has received wrath of this abuse the IMP has been called International Monetary Fools, It's Mugabe's Fault, and even International Mother F... It would be Interesting to know what other abuses are hurled at the organisation In various national languages.

The mass action against these organIsations and the international economic system continue all over the world. The media does not give major focus on these actions, but let as not deceive ourselves that mass action against capitalism is the work of mad international citizens.

I-low are we going to bring about fundamental changes to this country? How do we come these hurdles that we constantly expose? What else are we going to do des prayer, attending evangelical crusades and drinking ourselves to near paralysis? Ji ave blue prints and we will continue discussing some of the ingredients of these 202 blue prints. Here are some of these ingredients:

In any struggle for fundamental change, political pessimism is an enemy. History does not seem to teach us anything. This is a country that has a proud history, of resistIng foreign and national domination. That history is the basis of our partism and political optImism. We cannot let go of our glorious past. We have to consolidate it and make it the basis of further fundamental changes. The culture of resistance Is with us. We must invest In it.

we have to ensure we do not abandon entry points into our agitation for change. Constitutional reform has been a burning issue and one that no national or international force that shot down. It is a project that has captured the minds of many Kenyans. It has enabled Kenyans to verbalise their problems. It is precisely because the constitutional debate in this country has encouraged a natIonal discourse on societal problems that there has been concerted efforts, national and international, to sabotage it. It is clear to all that the constitutional project reflects yet another revolt against the status quo. Unlike the constitution making of the 1 950'S and the early I 960's4here is no armed struggle in the county to reinforce it, but we should not dismiss such an eventuality. It is likely that if we mismanage the constitution making project, we are precisely asking for other alternative non-peaceful methods of bringing about change to this country.

The era of critique of our politkal economy has come to an end. We must InsIst on solutions. It is sad that out of all our political parties and politicians, only the Hon. Professor Anyarig' Nyong'o addresses this issue. What is the use of capturing political power if what Keriyans expect is no change at all? Do our politicians and political parties offer genuine and viable alternatives to the Mol-KANU system? No political party knows what to do with the IMF and world Bank other than to succumb to the organizations draconian rule. No political party in Kenya can claim to understand the new world order. For example, how often do they articulate their regional, continental and foreign policy? Kenya will not change as long as the political elite has no ideas on how to change the country and the world. This intellectual surrender on the part of our political elite spells doom to any fundamental change that we may expect.

We cannot, however, blame the political elite for having no vision for the country If we continue saying that politics is a dirty game; a game for the filthy, the thieving and the killers. Who is going to make politics clean? Kenya has an alternative political Leadership in the private voluntary and even the political sectors. This leadership, however, lacks courage and dedication. it is frightened of the struggle for political power. When the middle class clubs focus on power and water shortages, one gets the ImpressIon that this problem is recent. Have we forgotten that the wretched of the earth in this city and in the rural areas have never had power or water since independence? While we pay lip service to poverty eradication, what are we doing about wealth equalization

Kenya has serious popular movements that are gaining strength everyday. The

203 for alternative political leadership. That leadership exists. it must stand up and be counted. The politics of running with the hare and hunting with the hounds are long gone. To save the motherland, this leadership that is multi-ethnic, multi-racial, regional, generational, has a crucial gender component as well as people with disabilities and extends beyond our national borders, must coordinate the national movements and have a political initiative that will reflect the needs of the country. This readership must contest for political power without destroying the movements as the political parties have done.

Zimbabwe's national constitutional assembly learnt a lot from the Kenyar movements. The Movement for Democratic Change, though politically abstracted from the Zimbabwean mass movements, is a political prisoner of these movements. Political parties without checks and balances deliver nothing. This is a lesson we should learn from the western democracies. The industrial and military complexes in these countries choose the political leaders and ensure they deliver. Social movements in our countries must ensure that the state does not become a rogue elephant.

The demand for one presidential candidate has been taken up yet again. Nothing will come out of it. it is no longer to sing "Mci must go" when Mol has so many political children who will not guarantee change. Let the political parties and political leaders tell us in what way they are different from Moi. Kenyans should not allow the ethnic, gender, regionaL racial, or generational divisions to be exploited anymore. Those who survive on these divisions must be banished.

The citizens of the international community are battling with the same problems as the citizens of Kenya. What has happened over years is iniplernentation of definite policies by the international economic and political systems to divide the citizens of the world on the basis of colour, region, national borders and race. The global mass actions against trade, aid and AIDS show that international solidarity cannot be dismissed as politically useless. We hope that I-Ion. Norman Nyagah now knows that the representatives of the American government are not representatives of the American people. The treatment of our MPs has disgusted those American people who know of it, as it has disgusted us. Our MPs should havecomplairied before accepting to make the trip. They shourd have mcbi!ised Kenyan and American people against the demand for tests and refuse to travel. We must know that however sweet capitalist goods are, we have problems with their distributionl

Whoever said that a long journey starts by making the first step was full of wisdom. We may not achieve much right now, but we must start the struggle to capture political power both from the current political leadership in power and from the opposition that has no solutions to the continuing poverty of this country. I

204 EcoNews Africa's Multilateral Agreement on Investment (MAI) WILLY MUTUNGA

For those of us who do not know II, MA! in the Kikamba language means SHII'! I mention this detail upfront because Econews will be Involved in civic education in Ukambani and the entire content of MAI can be discussed around the word SHIT! There was a story to the effect that in the last national elections in Llganda, a frustrated Ugandan formed a political party whose sole project was to get the British back in Uganda. The prolect failed and it is said the Ugandan answer to that project was that the British had never left! There used to be the time when all our ills were blamed on fore Egn domination. British colonialism, it was argued, was the root cause of all our problems.

Independence brought in exploitation by many nations and made the situation worse. Neo- colonIalism was simply recolonisation and independence was nominaL The clarion call "the struggle continues' reflects this view of independence. There is no doubt that independence gave the forces of recolonisation a perfect cover, ample room to manoeuvre from the background. The root cause for all our ills were now confined to our national leadership. The nexus between the national leadership and the foreign forces ceased to be analysed (except by the Kenyari left, a band of intellectuals who did not command any popular base) for various reasohs: analysing the nexus between foreign interests and the national leadershIp was seen to be a dangerous political tactic because the latter would blame all the societal problems on the global environment.

The national leadership has clearly tried to shift blame for all our ills to the global environment without much success. These recolonisation forces have not been idle. They have constantly launched furious propaganda to the effect that they are the do- gooders, the aid givers and that if our country cannot get out of its problems we only have ourselves to blame. We agree that whatever happens to Kenya 1 Kenyans have themselves to blame. In matters of analysing our situation., however, we cannot take that analysis out of the so-called global village.

I congratulate EcoNews on this publication. This publication br!ngs back the agenda of recolonisation. Some of the words or expressIons that have since disappeared from the political vocabulary during the so-called Cold War are back and they appear in this publication: foreign domination, exploitation, recolonisation, imperialism, the right to self-determination, sovereignty, interests of the people and many others. The Quotation from the work of Susan George andFabrizio Sabelli (p.57) brings forth theA argument that the institutions of recolonisation are the international financial trading lnstitutions such as the World Bank, IMF and multinationals. 205 This publication shows how contracts (be they laundry, leases, contracts of employment, insurance companies, MAI and other investment agreements) reflect the economic powers of the parties involved. The publication shows that parties to a contract who are more powerful economically can impose conditions on the weaker party. Contracts, therefore, reflect the interests of the dominant party. That is why on page 57 we are told that international agreements conform to the vision of the world the recolonisers want. It is only when the parties to a contract are of equal bargaining power that we can talk of "equality", "fairness" and "freedom of contract" The history of MAI as it is explained in this publication is proof of this truism about bargaining power.

Contracts, however, do not exist in a vacuum. Contracts are normally invoked when relations have collapsed and parties go to court or to arbitration tribunals. What is crucial, however, in terms of performance, is the role of third parties. The publication tells you how MAI will be influenced by the policies of the World Bank and IMF. There are political sanctions that impact strongly on contracts although the sanctions do not arise out of the contract itself. What this publication brings out clearly is the kct that the performance of any investment contract takes place within the environment of the New World Order, which is the economic system of recolonisatiori. We must agitate on the terms of the MAL but MAI is a result of an international economic system that must be changed. We must stay focused on the parent of MAI. I find solace in the question that is put to all readers on page 69: "Can MAI be challenged in such an environment [of recolonisation]?" I find the answer given to this question patriotic, "Only if there is a fundamental change, a change that places the interests of the people of Kenya before those of actors working on behalf of the global market'." This is a call for an alternative political Jeadership. We need, in criticising MAI, also to criticise economic nationalism, which the publication dwells on at some length. The Status quo without MAI is not something to write home about.

What MAt illustrates is a story. I heard doing rounds in Mexico City when Mexico was on the verge of collapse. The president told his fellow citizens he had good news and bad news. The good news was all Mexican debts had been written off. The bad news was that all Mexicans had 72 hours to leave the country. Need we ask who the new owners of Mexico would be? This publication gives us the discourses we may use to fight MAI: these are the discourses of democracy, transparency, human rights and sovereignty, among others. This strategy is very important because it exposes the international economic system of its hypocrisy, perfidy and double-standards. These discourses have been used effectively by NGOs in the North to fight MAt.

One crucial fact in the publication demands comment. The MAt negotiations were secret until NGOs found out about it and through the internet publicised the content of MAT, and then the global campaign against MM started. it may be MAI is the fIrst of the vibrancy of global civil society. It is clear that the international economic is exploiting and oppressing the people of the world. It is becoming clear to L ople of the world that human rights violations are not confined to the South. 206 Nations that oppress other nations also oppress their own people. MAI and other agreements may happily give birth to the unity of the peopleof the world agaInst this New World Order (Disorder).

Finally I must say something about MAI and human rIghts. Pages 73-76 give you a specific treatment on this issue. What the entire publication exposes is the root cause of all human rights violations, the international economic system. This should be the core concern of the human rights movement, but it is not. I will not go into the reasons why this is not the case, but this publication supplies some of them. What I need to add is that as we all start agitating for all rIghts, econornc, social 1 cultural, political and civil, MAI tells us that the mother and the father of all violations is the international economic system. If we want a world without human rights violations, then we must change the international economic system. It is a political crusade for us and for all the people of the world.

207 JAA. ie I

202 B. Security Problems in Kenya Rethinking Utumishi Kwa Wote: Some Recent LeSSONS MUGAMBI KIAI

"Tulikuwa tunapigia mbuzi gita, ("We were playing guitar music to goats,") complained a dearly exasperated Professor C.M. Peter of the University of Dar-es-Salaam following the recent brutal crackdown by security agents of public protests in Zanzibar.

Prof Peter's frustration hinged on the fact that this naked exhibition of police violence occurred despite a spirited effort to humanize the police force in Tanzania through the introduction of human rights education in their training. This was in an initiative carrIed out under the auspices of the University of Dar-es-Salaam Legal Aid Committee,

of which Professor Peter is the ChaIr, it

Prof. Peter's ire is shared by human rights workers across East Africa. In fact, at about the same time that the Zanzibaris were being subjected to police excesses, K'enyans were also wItnessing similar scenes as the police force and other security agents violently evicted hawkers from NairobI's River Road area. And in Kampala, a University student was reportedly shot and killed by the police.

Similarly, human rights workers in both Kenya and Uganda have been actively engaged in delivering human rfghts education to the police. Moreover, credible evidence is that police brutality and abuse of office is on the rise, particularly in the case of Kenya. So where have we gone wrong, if at all?

For sure, the problem is one of context. It is not the police force per se that is rotten and inhuman: rather, it is the whole constitutional and legal system that it serves that is the mother of the human rights dilemma that currently plagues the region. As such, the lurid scenes and incIdences of police malfeasance are a symptom of the problem and not the problem itself.

Hence, the introduction of human rights education in police training, though laudable and commendable, is analogous to applying a strip of elastoplast on a mortal wound: it may slow-down the deterioratIon and postpone the inevitable, but it does not solve the problem.

This should not be mIstaken to mean that human rights education and training for polIce officers is a waste of time. However, the thesis here is that human rights education and training will not achieve sufficient change in police behaviour if not simultaneously = accompanied by structural changes to the police force as a whole.

ver much an officer would like to adhere to the tenets of humanity and al l this is lost when she or he stands to lose his or her lob for not obeying an hL 210 illegitimate amri (order) from the superiors. What we say In Kenya is that human rights are good and noble, but they are not prepared hum wcgu ungu (to spill the flour) in its service, especially gIven the huge unemployment fIgures in the country.

And there is a domino effect here: the Commissioner of Police Is a direct appointee of the President, serving in that capacity at the pleasure of the latter. This opens the position to political interference where the holder of the office of Commissioner will do all they can to see to it that they do not step on the wrong toes, human rights or no human rights. And all the human rights training in the world can hardly move this person in the face of "orders from above." Indeed, despite a rich corpus of jurisprudence from, for instance, the Nuremberg trials of Nazi war criminals that "orders from above" are no justification for violations of human rights, one still hears the same being used to mitigate and apologize for the knowing violation of others rights by officials.

Hence the need to make strLlctural adjustments in order to correct the deIthrate constitutional design that creates a master-servant relationship between the President and the Commissioner of Police which exists as a potent political weapon for the former. Indeed, it can be noted that right from establishment of imperIal colonial rule, the police force was created as a coercive mechanism to "pacify" those among the indigenous Africans who resisted the imposition of colonial rule. In Kenya, for example, punitive police expeditions were dispatched against the Embu (1904, 1906), Kisii (1904, 1908), Sotik (1905) Kabras (1908) and Nandi (I 905-1906).

In the post-independent situation, the police force continued to be a convenient tool in "pacifying" the opposition and critics of the government in power. As the one party state and the leader personality suit took hold and entrenched itself, the skills and experiences of the police in colonial days came in handy to repress all those who had different visions of nationhood and statehood. The leader was the state and the state was the leader, and those who questIoned this had the police to answer to in an attempt to convince them of the folly of their ways.

The coming of the "second liberation" and reintroduction of political pluralism (except in Uganda) has seen the police force continue in its role as a partisan tool to crush the opposition. It is invariably a quick fix to simmering political tensions where those who disagree with the establishment are persuaded and shepherded to broaden their thinking with a tap of the run,gu.

And to keep them performing this role, the police have been denied autonomy: political, social and financial. Hence, they remain some of the most abused workers in the labour force, living on meagre earnings and living in official slums. it has sometimes been argued that the introduction of human rights education a4 training is useful because whereas previously the police would open dissent

211 they will now be gentler in the application of the rungu; using it less liberally and with a little less zest and enthusiasm.

Naturally, anyone who watched the video footage or saw photographs of the police brutality especially in Zanzibar and Nairobi could not have failed to notice that the police are yet to properly absorb the lessons of human rights training and education. On the face of the available evidence., the lessons have apparently been going in through one ear and straight out through the other in the cases of most of the trained officers. In one photograph, for instance, a hapless mama mboga had been grabbed and was being frog-marched by three male enforcers! Still, despite or because of this grave situation, we must continue to provide human rights education and training to the police

Sometimes though, it really does seem as if we are being unduly academic and analytical of the whole situation and are quite simply saddled by a cruel, unruly bunch of sadists masquerading as law enforcement officials. Indeed, they often com.e across as a veritable band of brigands armed to predate and not to protect. Like the one who was heard telling his colleagues as they brutalized the hawkers In Nairobi, "What are those guns for? Kill them. If I had a gun. I would shoot them like rats to prove to them that we are sertous"

What use is proof to the dead, one may ask. It remains an eternal puzzle to the more level-headed among us, but it does seem to make sense to some in the police force; lending credence to the words of the person who once said. "To a (wo)mari with a hammer, every problem looks like a naiL"

hLL 212 Shooting to Kill is Shooting Justice MUGAMBI KIAI AND WILLY MUTUNGA

At least two Kenyans lose their lives every three days at the hands of the polIce. In 1996, this fIgure stood at about two people every week while in 1997, three people similarly lost their lives every week. In the majority of cases, these Kenyans were shot.

These high incidences of fatal police shootIngs have lent credibility to accusations that the police are trigger-happy. Indeed, it was only recently that the President himself publicly chastised the police for using live animunition to disperse protesting farmers dunn,g the elections in the tea elections. The government position, he reminded the police, is that they should not use Jive ammunition while attempting to control or disperse public gatherings.

Hardly had the ink on this dried when the press reported that the police had shot and wounded several adherents of the Mungikt sect, who were suspected of holding an illegal assembly. Had the President and Commander-In--ChIef beerf defied by his charges?

The last time such a thing happened was in December 1996, when the police shot dead three university students involved in a peaceful demonstration. On December 17, 1996, Etaba Okong'o was shot dead at the Egerton University when police shot at protesting students. The following day, while peacefully protesting against this police killing; Kenneth Makhokha Mukabi and Eric Kamundi were also fatally shot by the police.

What was remarkable was that, following Etaba's death, the government had issued a public directive to the police not to use live ammunition while attempting to bring public gatherings under control. Indeed, the then Commissioner of PoIice Shadrack Kiruki, said that the officers had defied orders not to use live ammunition on the students. He was sacked soon thereafter following a huge public outcry.

This did not stop the police from using Jive ammunition against pro-reform crusaders during the 1997 saha saha meetings countrywide, resulting in some of the fourteen deaths. In one case, 16-year-old David Kahuri Muturi, a form two student, was shot dead by a policewoman at close range. He was shot in the chest at close range and his body left at the roadside. After the kil]ing, a police officer was heard to says "Wacha wafupe mawe. Wanufikiri 5151 xli wutoto? Nitawcimallza mo/a kwa moja. ("Let them dare throw stones at us. Do they think we are children? I will finish them one by one.1

Clearly, the police are not inclined to follow the goverriments orders not to use liv ammunition while controlling or dispersing public gatherings. As the recent Mu

213 shootings show, not even if the President orders it. Why not?

Police spokesperson Peter Kimanthi often says that police adhere to the letter of the law in the majority of cases and police shootings are only perpetrated when unavoidable. Under Section 82 of the Penal Code, police officers are allowed to do "all things necessary for dispersIng the persons" in a riotous assembly. Under the Police Act, the police are allowed to use as much force as is necessary to enforce the Law.

Further, Kimanthi argues that it is only a few rotten apples in the force that shoot wananchi indiscriminately and outside the ambit of the law. Yet, the facts on the ground are diametrically opposed to these assertions and the converse is normally what obtains. Indeed, there are countless testimonies of cases where the police shoot first and ask questions later.

While it is true that violent crime has gone up and there is a proliferation of arms in the country, there is a crescendo of cases where innocent and helpless wanwchi have died from the barrel of a police gun.

And whereas the police as well as the Attorney General's office maintain that they prosecute errant officers, the question is whether they are doing enough, given that the shootings of the innocent only seem to be escalating. What is wrong?

Several things. Historically, the police have been a coercive tool rather than one meant to provide utumishi kwa ivore (services for all). Right from the colonial days when the police were used to subjugate the colonized Africans to date when they are instrumental in keeping a tight rein on the political opposition, the police have been the fist of the state, accountable only to the executive.

This executive has been only too eager to use the police to deal with any threats to it, real or perceived. In turn, the executive has offered a carte blanche under which the police had the latitude of being trigger-happy, it must not be forgotten, for example, that only recently Minister of State Marsden Madoka was defending police shootings in Parliament.

Indeed, most of the time, even the President himself has commended the police for their performance, which has been widely construed as a tacit nod of their shoot-to- kill practice. On other occasions, the President has even ordered them to shoot to kill, as he did in December 1999 when he said that all cattle rustlers would be shot on sight.

This phenomenon is not recent: while moving a Bill in Parliament to make robbery with violence a capital offence in 1973, former Attorney-General Charles Njonjo also condoned police shootings

And the government has not been alone in condoning this pernicious habit: an objective urvey of a cross-section of Kenyans would indicate that a large number of them may ort police shootings, as they think that those who are victims of it have It coming.

214 To them, society would degenerate into anarchy and lawlessness without police shootings. There is still a widespread belief that police shootings are a deterrent.

Indeed, it is only a recent phenomenon that the public has begun to embrace any notion that the police do not have the right to shoot on sight. A good iJiustration of this is the fact that when the Kenya Human Rights Commission (KHRC) conducted a campaign against police killings in 1996, it was common to hear both government and quite a number of private citizens accuse it of condoning crime in society.

Yet all that was sought was the protection of the right to life. It is this rIght that is imperiled by a trigger-happy police force. In Kenya, because of these attitudes by government and citizen, the police have been Issued with a license to kill.

it was only after a number of publicized cases of the shooting of innocents that public opinion began to interrogate police shootings. Yet there are still a sizeable number of police officers that have killed innocent wananchi and not faced the wrath of the law, spawning a culture of impunity in the force. The most recent example is the disband i1g of the AJfa Romeo squad of the police., which saw the transfer of its members - most of whom were accused of a myriad of violations - instead of their prosecution, suspension and dismissal.

Hence, there Is a dire need to introduce more checks and balances vis-à-vis the police force. The police need to be accountable to Parliament for all their actions. There Is also a grave need for the introduction of an independent complaints commission to investigate abuses by the poJice.

Moreover, the police need to be retrained to give them a human rights foundation. This would make them understand that the right to life is sacrosanct and inalienable and give a humane basis for operations and practice.

it is not in dispute that the police have to sometimes shoot to defend themselves or enforce the law. What is in contention is that the police regularly shoot to kill, even where there is no threat to them at all. Apart from violating the cardinal principle of the right to life, this practice has not served as a deterrent to crime, which continues to rise dramatically. The lesson should be clear to all of us: the killing of a suspect Is the killing of justice. For when we shoot to kill, all we kill is justice.

IT Guaranteeing Security Is Now Upon Kenyans Themselves! MUGAMBI KIAI AND WILLY MUTUNGA

First they caine for the Jews; And I did not speak oi.it, Because I was not a Jew; Then they came for the communists; And I did not speak out, Because I was not a communist; Then they came for the trade unionists; And I did not speak out, Because I was net a trade unionist; Then they came for me, And there was no one left to speak forme Pastor Niemoe1ir

When we read about the attack on Hone urable Nyachae's property and that of one of his sons, we could not help but reflect that the other day it was 1-lonourable R.aiia Odinga who was the subject of such attacks, and the day before that it was Hon ourable Daniel arap Moi battling the barriers of the Ngorokos "Who will it be tomorrow?" We dare ask.

There have been numerous reports on the issue of security in Kenya Our government seems to delight in participating in Peace Missions outside Kenya though it cannot guarantee us peace within its own borders. For how long are we going to hear about politically Instigated violence, the sc-called ethnic clashes? Mob, Likoni, Ensopukia, Laikipia, Gucha, Mt. Elgon and Garissa alibied yesterday; today isiolo is bleeding. For how long shall we hear of banditry, cattle rustling, carjackings private armies and a polIce force that works hand in glove with criminals? Have we not set dangerous precedents as these acts of insecurity continue and we do nothing about it? What we hear is: it is the Kikuyus, the i3ukusus, the Boranas, the Merus, the Sornalis, the Luos, the Kisiis, the Marakwets. BUT NOT US! Tomorrow it will be you, all of us, unless we stand up as a nation and put an end to violence.

Over the last six years the Kenya Human Rights Commission has monitored, documented and publicised human rights violations In Kenya. One of the Commission's reports, Mission to Repress, published in 1996, documented incidents of police torture and gave recommendations on how the government was to deal with the deadly issue. The write up in the Daily Nation on May 15, 2000, was yet another story told to ask the Kenyan government to perform its duties in protecting its citizens from those employed to ensure that the citizens enjoy their security and are guaranteed protection f life and property.

e pattern is simply one of impunity. Let us recall the following examples:

216 Recall the Ngorokos? An anti-stock theft unit in the police force, a public force, was privatised to serve special political interests that were clearly against the then VIce- President, Honourable Daniel arap Mci. We seem to have graduated to private armies to supplement the public police force that is still doing its Ngoroko functions. In 1 982 a special unit was set up comprising police officers from the then special branch, the criminal investigation department and the general force to deal with dissidents. The unit specialised in planting documents on suspects in their elaborate searches of members of the Twelfth December Movement and later Mwakenya. This specIal unit was responsible for the Mwakenya tortures at the Nyayo torture chambers. You have had the Flying Squad the Alfa Romeo, that has just been disbanded, and yet another unit, Special Crime Prevention Llnit, has been formed. Impunity continues and will continue

it seems obvious, but let us state that we elect governments and pay taxes so that our Fives and properties are protected. Security is key to any society's survival. All human beings yearn for peace and prosperity that guarantees the basic needs of everybody. There are other ingredients of what human beings need, but we restrict this writs-up to the issue of the government's responsibility as we have stated it and the fundamental importance of security in a nation.

We have argued before in these columns that a government that does not guarantee security to its people has no legal or moralIegitimacy to rule. We need to start discussing very seriously how we are going to secure peace and security for us all. We have criticIsed our government enough. We need solutions, and we suggest the following in the short-term:

• No security, No taxes. Why do we continue to pay taxes when we have no security? We may hire guards, form security groups etc., but unless the government guarantees security, these self-help protects will not work.

• Disband the police force. it has been done before. In 1982 the mutiny of the Air Force, among other decrees, issued to disband the police force. The Air Force in turn was disbanded. We see no difficulty in weeding the police force of its criminal elements (who are known by the powers that be) and building a core moral and patriotic police force. There are such men and women in the police force at the moment, and they can form the core of the new polIce force.

• Cease to demand security for all, but take it upon ourselves to provide security for all. The government of Kenya must allow Kenyans to take care of their own security and facilitate such projects rather than sabotage them.

• Exercise our powers of citizen's arrest to arrest and privately prosecute members of the police force known to have tortured and killed people, if this is not being done already.

• Undertake a people's commission of inquiry into police torture, murder and gen violations of human rights. Such commission can be a wing of the P 211 Constitutional Commission of the Ufungamano Initiative,

Let us end this write-up by tellIng a story that is now forgotten. In 1998, an Organisation called Kenya Community Abroad (KCA) nominated Inspector Of Police Joe! Kipkemboi Sang, a well-known traffic police officer, for its annual award. The award comprised a plaque and US $600. The Kenya Human Rights Commission was asked by the KCA to assist in tracking down Sang so that he could receive the award. An official of the KCA flew to Kenya to participate in the ceremony. Inspector Sang had been honoured by the President just before the K'CA award. Inspector Sang came tothe Commission and agreed to attend the ceremony and the Commission informed his superiors. Howéver Sang never came for the ceremony. He has never come for the plaque or the cash. When the Commission investigated this matter, it was clear that Sang had been thoroughly intimidated against attendIng the ceremony and did not want to risk losing his job. As a matter of fact, a senior police officer was heard to retort that since the public liked Sang so much, the force would transfer him toMoyale to take care of camel traffEc

It seems we cannot even glorify our good cops. It seems the bad cops make all the decisions. There lies our perpetual insecurity, which we must end.

hL 6L 218 Time to Curb Arbitrary Powers in Kenya MUGAMI KIAI AND WillY MUTUNGA

You do not know who I am and there is no way I can waste my time queuing. A.magistrate threatening a w&iter in a Tala restaurant, February 2001

A magistrate jumps a queue in Tala restaurant and orders french fries. The attending waiter refuses to take her order, insisting that she resume to her proper place in the queue. She Imperiously declines, as quoted above, and storms out to call the police from a nearby police post. Armed police arrive and arrest the waiter and bundle him into their vehicle. He is booked at the Kangundo Police Station.

This incredible press report seems incongruous with our times. Indeed our first reaction was out of palpable shock. Yet the more one thinks about it, the more one realises that incidents like this, involving the abuse of political office and arbitrary exercises of power, are repeated over and over again, though in different forms, several tunes a day.

Currently, the spotlight is squarely focused on the police force following the fatal shooting of Allan Mbito, son of CTideon Mbito. It is apparent that Allan lost his life in trigger-happy circumstances where the rule of the thumb Is shoot first, ask later, which is also a hallmark or arbitrary rule,.

This incident confirmed yet again what human right workers in Kenya have been regularly shouting themselves hoarse about: that as we go about our daily business, several innocents lose their lives to police bullets in extremely peculiar and suspicious circumstances. These circumstances invariably involve the exercise of power without any reference whatsoever to any principles of humanity. Now that they have shot the son of a mdosi, we will hopefully all wake up and do something about it before such an ugly tragedy repeats itself.

In Kenya, given our history of repression and subjugation by authority1 we have been soclalised and taught never to question authorIty. Indeed, this has become institutionalIsed and people are known to lose jobs for merely asking questions. = Naturally, this inevitably leads to serious abuses of human rights, where officials exercising powers viewed to be absolute trample rights underfoot.

And there is scarcely a more dangerous instrument of governance than absolute power. Our collective memory should instantly recollect the pernicIous consequences of absolute powers and prerogatives. For exanipJe, one recalls the extreme represslo arising from the exercise of purportedly absolute powers of the President to de

219 without trial, when all that was legally required was a statement from the detaining authority that one was a "threat to security." guaranteeing their arrest and subsequent incarceration.

Today, one of the mafor constitutional questions facing our courts is as to whether or not the Attorney General's powers to enter a nolle prosequ (termination of prosecution) are absolute or whether they must be tempered and guided by reason, whIch should in turn be disclosed.

With regard to the Attorney General's powers, a curious but relevant incident occurred barely a month back, Principal State Counsel Orirt Onyango directed prosecutor in a Naivasha court to enter a ndlle prosequi in a case where a businessman had been charged with sexually assaulting a 12-year-old boy. The court was., at that point, due to deliver ruling as to whether the defendant would be put to his defense.

The magistrate hearing the matter, Ms Lucy Mutai, refused to allow for the entry of the noUe p.rosequi, demanding that the prosecutIon provide good reasons why it çhould be allowed. Mr. Onyango's response typical of one in authorIty, was that, "the magistrate cannot question the validity of a nolle prosequf as the same was, signed by me."

Ms. Mutai, with her hands seemingly tied, loudly complained that the nolle prosequl had blocked the administration of justice and appeared to have won the accrued problem. This is very true. That one can purport to exercise absolute authority in the manner that Mr. Oriri did is a tragedy. That the system can allow him to get away with it is a double tragedy and cannot be good law, by even the most generous of standards. Indeed, it was Lord Acton who once correctly reminded us that "power corrupts and absolute power corrupts absolutely."

We need to constantly recall that the struggle against absolute power was the centrepiece in the struggle not only for independence but also for the second liberation. Moreover, these struggles were based on the understanding that the correct position with regard to the exercIse of power was that the rule of law would be strIctly adhered to and jealously guarded. It should further be remembered here that a cardinal tenet of the rule of law is that power should never be exercised arbitrarily and without due and proper regard for the rights of the citizen.

Hence our indignation any time we see instances where power is applied or exercised whimsically and without recourse to known and acceptable precepts of governance. Interestingly, as Kenya inexorably continues in the march towards good democratic rule and practice, we receive constant vi sits from the old ghost of arbitrary rule.

Sample this the Chief's Authority Act was repealed and renamed the Chief's Act in 1997, The rationale for this was that chiefs had become a power unto themselves, Iften peremptorily lording it over wananchi without regard whatsoever to their rights. hence needed to be shackled with a view to ensuring that their exercise of was properly controfled and judiciously exercised. 220 To date, even after the repeal of the Act, one still hears of chiefs who will demand "harambee" contributions from those in need of their services, even - tragically - where it involves the processing of documents following the death of a close relative.

This informs of an immediate need to both refashion the constitutional andiegislative machinery that buttresses arbitrary rule and build a culture of peaceful resistance towards it. An Intriguing new challenge has recently opened up in this regard, with students and parents of schools beginning to question the MInistry of Education whenever it is viewed to be autocratic in Its exercise of the powers of transfer of teachers. This is clearly exemplified In the vocal protests following the transfer of the current principal of Mang'u High School, Mr. Paul Otula, to Jarnhuri High School.

One looks forward to the day when this questioning culture will pervade every political, social, cultural and economic rubric. That will be the day when, for example, there will be no question of the word of the chair of the political party, however ridiculous, being law, or the word of the man of the house similarly assuming the same power of the law there. *

Yet among us, there are those who, for one reason or other, will continue to insist that unfettered power is the only way forward, as we have little time to be discussIng and consulting on issues while we should instead be focusing on development. They subscrIbe to the notion of benevolent dictatorship. Indeed, they assert that If Moses were a committee. the Israelites would still be in Egypt.

That remains a moot point. We remain to see one dictator whose benevolence has led to universal adoration. And who is to say that if Moses were a committee, the Jews would not have been the first on the moon?

221 A1111114 Land Grabbing: The Unspoken Foreign Connection MUGAMBI KIAI AND WILLY MUTUNGA

Professor Maathai has said it. It is a serious allegatIon. The allegation is that some of the Karura plots have been allocated to foreigners, some working with UNEP! This allegation is yet to be proved, of course.

This allegaflon Is not the last one, nor is it the first. Remember the moral issues that have been raised about the foreign company that soldto Kenya the presidential jet. It has been said that the company involved knew that there was no authorisation for the purchase. Yet there is the case of the construction of the [idoret airport. It has been alleged that the conipany in question knew the project was irregular. Controrsy still surrounds the bullet factory, a project that is completed and rarely attracts the interest of l(enyans. We have heard of companies that sell expired drugs knowing very well that the consequences may be death to Kenyans. The issue of foreign banks that open accounts for African leaders when they know or ought to know that money has been improperly obtained is another case in point. A lot of African resources have been lost that way: Haile Selassie, William Torbert, Mobutu Seseko Kuku wa Nzambaga and others banked in foreign banks and it is alleged that the money is stuck there. The Swiss banks have managed to settle disputes with the powerful Jewish lobby. Poor AfrIca does not seem to match such lobbies. The committee for eminent Africans (including the president-elect of Nigeria) is yet to get us compensation for coFonialisation! Nor has the African-American been compensated for slavery.

It may be naive to expect capitalism to have any moralIty. All these examples are reflections of a system whose fundamental law is the maximisatIon of profits and the minimisation of losses. It is a system that trades in deaths. The current campaign by the international human rights movement urging multinational corporations to be ethical and moral in their operations so as to ensure those operations do not violate human rights may be a cry in the wilderness. The moral issue has just been taken by these companIes as a pioy in their monopolistic competition. That competition may mitigate human rights violations, but even that is expecting a lot.

The Canadian company. Tionmin Resources Incorporated (TRI), has now been in the news for quite a while. One of its managers has been in Nairobi to talk to young professiona's who are interested in its operations. This Canadian company wants to carry out mining activities in KwaIe and it is reported has already spend 250 million shillings in prospecting. Judging by what has been covered in the press, the issues whether the people of Kwale want to lease their land for 21 years for whatever Lt thearey being offered; the priority of this project when the basic needs of the are taken into account; the procedures of con siiltation and participation in the

222 discussion of the profect by all stakeholders; whether the laws of the country have been followed; the issues of disclosure, transparency and fairness (it is alleged that the environmental impact assessment has been done by the company) and the issue of handing over the land in the same condition as it is now when the mining operations are over. It is gratifying that the interests of the Kwale people have been taken up by the Council of Imams in Mombasa, the Muslims for Human Rights (Muhuri), Kenya Wildlife Services (who are in addition raising the issue of securIty and the destruction of the marine park at Shimoni, which the company wishes to use as a port) and the people themselves. In the old days of one-party dictatorship there would not have been any discussion on such as issue. The state would have handed over the land, perhaps for peanuts, in the name of development.

The mining company must now disclose all the information that will help the people to decide, without intimidation, whether or not they want to deal with the company. It is of course intimidating the people if the company enlists the cooperation of the government and the members of parliament as representatives of the interests of the Kwale people. In these matters the people themselves have a voice. It is high timdthat this paternalism by governments and foreIgn companies, when it comes to development, comes to an end. The people of Kwale have a voice in this matter. The constitution protects their private property and their constitutional rights must be respected.

The discourse of development has to be criticised in these matters. Is it development when the construction of a new road results in the lands of peasants being grabbed? Is it development in the case of the people of Kwale if for the next 21 years they will be denied the use of their land and some of their basic needs, namely land and food, is denied to them? These questions can only be answered by the people themselves. Foreign companies and financIal institutions have been known to impose prolects on governments in the name of development, and the results have been disastrous, In this era in which the discourses of respect for human rights, good governance, transparency and democracy are accepted legal and moral values in the New World Order, TRI should set a good example by ensuring that the rights of the Kwale people are respected. The attitude that TRI is taking (that It can move to Tanzania) if its terms are not met is a good one. TRI has that freedom. It should respect the freedom of the Kwale people to relect the prolect if their terms are not met.

223 A11114 We Must Stop the Growing Insecurity MUGAMBI KIAI AND WILLY MUTUNGA

It is a massacre; it is a national disaster ... where will my pop1e go? That will they eat? Their houses have been burnt down. This rustling will not end until an electric fence is built between the Pokots and Marakwets. I-ion. John Marimoi

When upwards of 50 Kenyans lose theIr li.'es on one wave of violence in what is termed as "ethnic clashes," then it is time to yet again explode the myth that Kenya is an island of peace. And where this happens despite the existence of a government that has sworn to defend and protect a constitution that guarantees the rights to life and property, then it is time to question and interrogate the moral compass 4nd integrity of that government.

The calamitous attack on March 12, 2001, by members of the Pokot community on those from Marakwet, which has claimed close to 50 lives and wrought untold destruction, is another wake-up call to Kenyans to review the critical question of their security. For here we have a case, which on close scrutiny is much bigger than lust members of one ethnicity slaying members of another ethnicity. It is really a case of Kenyans killing other Kenyans with impunity.

And given the fact that the government has on countless occasions restated and reaffirmed its commitment to provide security to all Kenyans. Kenyans are entitled to know just what is happening. Indeed, this is critical because it is underthe banner of security" that numerous abuses of the fundamental rights of Kenyans are perpetrated.

We must remember that it is due to "security" that extra-judicial deaths, for example, have escalated with there being about 965 deaths due to extra-judicial killings in the last seven years. Moreover, there has been an average increase of 1 4% of this human rights violation over the last five years.

And it is also due to "security" that such violations as the abrogation of the freedoms of expression and assembly are being condoned by the state., a recent instance of ks which was the attempted arrest of Hon. James Orengo by the police ostensibly to record a complaint!

The contention here is that that state has mystified the provision of security to such an extent that it not only uses it to violate its own citizens' rights, but also does not provide the security that it harps so loudly about. And this Is borne by the facts and figures on the level of insecurity in Northern Kenya.

2000, the Kenya Human Rights Commission (KHRC) documented over 500

224 deaths resulting from insecurity in Northern Rift Valley and North Eastern Province of Kenya. In the same period, over 200 people died in various "ethnic clashes," This comes to a total of 700 deaths, and consequently, we can conclude that in these regions, about 2 innocent Kenyans are dying every day due to insecurity anarchy and lawlessness.

There are several caues of this, chief of which is the abduction by government of its cardinal responsibility to provide security. Sample this statement from the Marakwet district Commissioner, Mr. Odino Opuka, right after the latest massacre; "The situation is bad. The rustlers have more sophisticated weapons and training than my officers."

A couple of anomalies instantly hurl themselves at us at this stage. Firstly, this statement is inconsonant with a nation that has such a reputable military machine as to be invited to almost every peacekeeping mission organized under the auspices of the United Nations. Why are we so busy creating peace all over the universe except in our homes?

Secondly, if the government is saying that it cannot provide security in these t9reas, who is it suggesting should do it? In constitutional terms, government is clearly presenting its own case to be immediately wound up for the dereliction of ts core bit sines s.

A step further, we would dare to suggest that there exists evidence that 'ethnic' violence in Kenya is either state-sponsored or state-condoned, as it has usually been based on conflicting territorial claims by ruling party leaders of different ethnic groups. iWo reports published by the Kenya Human Rights Commissioii, The Forgotten People and The Forgotten People revIsited in 1997 and 2000, respectIvely, assert that "tribal separatism was being openly promoted by government representatives, both elected and appointed1 in Northern Kenya."

The reports additionally state that, 'Polfticians further theIr personal interests under the pretext of defending the interests of their particular communities. As a result, voting is along ethnic lines. As a consequence. ,.ethnic clashes are exacerbated, sometimes even caused by government officials. The admInistration favours some groups over others; the police and army administer justice along ethnic Jines. This has encouraged ethnic consciousness and raised ethnic tension. No longer is rustling in northern Kenya simply a method of obtaining livestock and prestige. It has grown into clashes, which naturally are retaliatory, which verge on 'ethnic cleansing' as communities protect what they view as their integrity and independence."

And here is the crux of the problem. The government has little political interest in resolving these problems because its very basis is tffe ethnic differences of the Communities in the region. This would explain the naked lack of political will to satisfactorily deal with the problem of insecurity in Northern Kenya. 12

Tiagically, calls to get the government to resign for its abdication from its responsibilir are futile. Suggestions to get all Kenyans directly included in their governance th

225 a government of national unity are equally fruitless. Motions of No Confidence in government have followed a similar path, as have commissions of inquiry which, after squandering colossal national resources, deliver reports that no one acts upon.

Given this scenario, it is up to Kenyans themselves to take up the challenge of securing their own lives and property. This Is underpinned by the fact that security and self- defense are human rights. What is needed in such situations, as a survival measure, is the creation of a national consciousness of self-defence and self-help. Either we defend ourselves or we perish.

Global civil society is teaching us ways of initiating such an endeavour through the establishment of a people's tribunal to stop such violence and also punish its instigators and perpetrators. The most recent tribunal was the Women's International War Crimes Tribunal that took piace between December 8-12, 2000 in Tokyo. Japan. It was trying Emperor Hirohito and other high-ranking Japanese officials on charges of overseeing sexual slavery during the Second World War.

Locally, the project by the FIDA-K and other groups in the human rights network in Kenya to inquire into the murder of Father John Anthony Kaiser is similarly conceptualized and contextualized. Similar tribunals to look into "ethnic violence," "banditry" and "cattle rustling" can be set up.

These kinds of initiatives provide a basis for legal and moral censure and also secure the future from violence as they get to the heart of the matter. Moreover, they seek global condemnation of the heinous abrogation of citizens' rights.

Naturally, such a project is bound to be popular, given the fact that it offers the people a real chance to protect their fundamental human rights. And it is the popularity of this process that ultimately provides the collective strength and impetus to push government to assume its full responsibilities or resign.

The media, too, has a cardinal duty to keep the spotlight on this issue. it needs to offer comprehensive news reports as often as possible because it is high time that these tragedies stopped being treated like they occurred in another universe or amongst a different people. Information will bridge the chasm that the official neglect and dilapidated physical infrastructure have created between Kenyans living in the north and the rest of us. More and more, we will all be able to clearly see a death of one of them as a death of one of us.

The realization here is that although government can resist the lone voice of an individual person, community or sector, it cannot resist the collective voice of the majority of Kenyans. And this is how we need to deal with this issue, as one: all belonging to the tribe called Kenya.

JFiorgood measure, government would do well to note thatits failure to govern makes overnment of fallure And in our experience, a government of fadure rarely musters ar, uncoerced and unequivocal support from the citizens.

- 226 C. Government's Treatment of Civil Society C. Government's Treatment of Civil Society Why the Civil Society is under Constant Attack MUGAMBI K1AI AND WILLY MUTUNGA

Although the most bitter attack of the dvii society has come from the President and some of his minIsters (recall the virulent attacks of the Women's Political Caucus by Hon. Sunkuli; recall attacks of civil society by Hon. Kamotho and Hun. Rotich's critique of the NCEC as a dictatorship), it is safe to argue that this animosity of civil society is shared by the general body of politicians. What has not been dIscussed is the root cause of this animosity. it is also dear that politicians would not display this animosity of civil society if they for a moment thought their interests were being advanced by the civil society. so there is hypocrisy here. There is manipulation and lack of principle Maybe we should start off by making it clear who or what is civil society. The debate so far has shown that this concept, to many of the critics, is as clear as mid.

The simplest definition of civil society is that it comprises the organisations of the people Examples will clarify this issue: All welfare organisatIons; all funeral organisations; the women's merry-go-rounds; trade unions; professional groups; NGOS; religious organisations; the youth organisations; the women's orgartisations; the organisations of people with disability; charitable organisations of the private sector; the non-profit making media; and cultural organIsations to mention just a few examples. The term "various sectors of civil society" arises out of this variety of categorisations. The religious sector of civil society has been distInguished from the secular sector but both sectors comprise civil society. Another key categorisatibn is one of organisatiori. "Organised" clvii society comprises sonic of the categories stated here but not all of them. The best examples of organised sectors of civil society are religious groups, professionals and NGOS. There is still debate whether or not opposition political parties are part of the civil society.

What should be clear to politicians is that their attacks on civil society are actually attacks on theIr constituents, the Keriyan people. When they ask the false question "Who does the civil society represent" certain politicians quite clearly show they are not fit to call themselves the representatives of the people.

it is very undemocratic to shut up dissent on the basis that it does not represent the people. Is not democracy the right of the individual to speak out? The voice of one person may have such authority that it becomes the voice of the people and the voice of God/Allah. How representative are politicians? Do we represent the people when La we buy their votes, when the elections are rigged and are not free and fair? Do we represent people when elections are run of divisive issues (let us not forget that in 1 992 one of the issues for the election of the president was whether our president ould be circumcised!)? Do we represent the people when we use all divisive tactics book (ethnic, religious, regional, gender, class, generation, race, clans and

228 recently the Njlotes/Bantu distinction)? Do we still represent people when they have said we do not represent them? When President MoL urges the constitution-making process be confined to Parliament, does the President seriously think he represents the Kenyan people?

So, why is civil society under constant attack? The reasons we give here are not exclusive.

Various sectors of civil society are acting as checks and baJances in the Kenyan society. These sectors are vibrant and are making clear political statements This vibrancy is recent and is pinned against the one-party authoritarianism, which is yet to accept multipartism. These sectors of civil society have been involved directly in the constitution-making process, a very political process. For most of the period after the 1992 general elections the politicians did not have the political initiative in the constitution-making process. The politicians regained the initiative with the formation of the IPPG. The alliance between opposition politicians and the dvii society that has been reflected in the initiative called the NCEC has always been led by indivduals from the civil society. The constitution-making project in Kenya is an entry-point to the discussion of all societal problems. Constitution making has, therefore, brought issue politics in the forefront, something the politicians have always dreaded.

The reJigous leaders have been asked to accept political leadership and give their flocks, the Kenyan people, the salvation they deserve. Political leadership in Kenya is no longer the exclusive turf of electoral politics. Definite challenges to the leadership of politicians are no longer a secret. There is a national consensus that polItics and political leadership are too serious matters to be left solely to politiclans In an environment where succession is confined to the political leaders of the day, this widening of the environment for competitive contestation of the highest office Is totally unwelcome by the political par1es.

Various sectors of civil society are nurseries for clean polItics and alternative political leadership. It can be stated without a doubt that while some individual politicIans can, Kenyan political parties generally cannot give Kenya the leadership the country needs in the economic, social, political, cultural and intellectual arenas. The shining track records in all these arenas are not from the political arena.

The politics of "divide and ruJet are failing in their impact in the various sectors of civil society. KANU cannot expect total loyalty from Maendeleo ya Wanawake, tvlodan1 = COTU and other organisations KANU deemed to be in their political corner These organisations now find it necessary to review their relationship with KANU given the changing environment. The attacks on FIDA and the Women Political Caucus have made it clear to the civic sector that organisations cannot expect to carry out a principled dialogue with the regime. Even the organIsations that are regarded as pro- establishment or moderate are not safe from attack. Let us face the fact that the vocal leadership of the civil society at the moment is clearly middle class. This is the so group that is very critical of the status quo (how many complaints have we

229 from this social group about the failure to watch the "Bold and the Beautiful" because of power failure or rationing, about the failure to have a decent showers, about the potholes that are wrecking their roiturnba cars, about the mismanagement of resources, about the increasing pressures of the extended famiLy etc) and it clearly sees the threats to its survivaL What has been traditionally the supporters of the political system as a social group has decided that it is not well represented by the status quo. It is very clear that the various sectors of the civil society are going to emerge as a movement that may determine which politicians the rnvement will support in future elections. lust as in the West the industrial-niiRtary-rnedia complexes choose who will rule, organised sectors of dvii society may well play that role.

The writing is clearly on the wall. Thepeople's representatives are not the only voices of the people. The people are demanding that they also speak They are demanding representation. The people are saying their voices are the collective voice of God/ Allah.

616~ 230 NGOs and Politics: Which are Political NGOS? MUGAMRI KIAI AND WILLY MUTUNGA

The Minister of State. Office of the President, in charge of internal security, Hon. Retired Major Marsden Madoka, was last week reported in the local media warning NGOs which "meddle in politics," "engage in politics" or "engaged in active polItics" that they risked deregistration for such activities. He is reported even to have asked the NGO Co-ordination board to deregister such NGOS. We have heard similar warnings before when threats have been made by the government against religious organisations, student organisations, women organisations, youth groups, trade unions, university lecturers, teachers, nurses, doctors, farmers, slum dwellers, hawkers, matatu operators, and indeed, one can argue, against all Kenyans who are not involved in elective and competitive politics. I There is the misconception in Kenya that the word "politics" means elective politics and, therefore, the sole preserve of elected representatives. Another misconception in Kenya is that once Kenyans have elected their representatives to cooperatives, boards, councils or parliament, they lose their voices to their representatives. Yet, a further misconception is that the government in power represents all of us and is the custodian of all our voices. In that capacity of the custodian of people's voices, the government, therefore, decides what is and is not politics. What is amusing is that all these heresies are mouthed by the government and some politicians in the name of democracy, once baptised as "Democratic African Socialism! It has never occurred to our representatives that they owe their elections to dividing the Kenyan people on ethnic, regional, religious, racLal, gender, generational, class and recently, the Bantu and Nilote dIvide.

The NGO Co-ordination_Act, 1990 does not have a provision to which Madoka's warning can be pegged. Nor does such a provision exist in the Code of Conduct that binds all registered NGOS. Nor is "meddling in politics" a violation that the Regulatory Committee of the National Council of NCOs would invoke to discipline NGOS. This warning is, therefore, unconstitutional and illegal. It is uttered to intimidate Kenyans and reflects a government that only pays lip service to its commitment to the rule of law and respect for human and democratic rights. what, however, does Madoka's injunction mean when related to NGOs or any organisation or individual? 22 Madoka's inlurictiori means no NGO should criticise the government. NGOs which support government policies and policies of the ruling party are never seen as meddling at in politics. if an NGO's mandate is to criticise the government, as is the case of human rights NGOS, then to survive, such NGOs must abandon their mandate! It also means that if any NGO is a development NGO, then it must deliver resources witho constructive criticism or otherwise of the government and without imposing cond

231 on the government: Give the wretched of the earth reef and never ask why reRet is required! CLARiON's deregistration in 1994 is a striking example of this argument. CLARION published a report (now a book) on corruption in Kenya. CLARION used secondary evidence from government sources, concentrating on evidence that was scattered In various government documents. CLARION was accused, in part, of "conducting itself as a partisan organization by disseminating inaccurate and unsubstantiated material of a political character which gravely injured the credibility of the Government of Kenya." CLARION was deregistered by a procedure that violated the letter and the spirit of the NGOCo-ordination_Act, 990. It was on this basis that the government did not Contest CLARION's appeal to the t-ltgh Court although the national and international pressure against the deregistration was great and unrelenting. Those of us who were members of the NGO Co-ordination Board in 1994 realise how risky it is to advise a dependent 1 scared and partisan Board to deregister NGOS on grounds using such ambiguous terms as "meddling in politics." Recently. the Board reflected this dependency, fear and partisanship when it deregistered various Muslim NGOs in the wake of the August 7, I 998 bombing.

One of the principles NGOs are bound by is one of non- partisanship. The NO Ca- ordina.nç, I 990 does not define non- partisanship. In the books of the government, non-partisanship seems to mean either supporting the government or being apolitical. The government does not expect NGOS to have any political views at all. While the government is loathe to perceive any NGO as supporting the opposition, it takes great pleasure in having NGOs structurally allied to the ruling party. The case of Maendeleo ya Wariawake is too recent to be forgotten. One can also draw a similar parallel from COT U.

NGOs must have and do have political views about any political issue under the sun. It is their constitutional right to verbalrse those views as FIDA has done. Such views may reflect the views of a particular political party but that, surely, does not niake the NGO a department of that political party. Members, employees or directors of NGOS, who are so inclined, should be and are card-carrying members of the various political parties. NGOs should support the politics that they deem positive, while criticising the po'itics that they deem negative. NGOs should form political nurseries for alternative political leadership in Kenya.

None of the above is unconstitutional or illegal. Non-partisanship does riot mean what the government seems to think It means. NGOs become part1sart if they are structurally allied to or are appendages of partisan party interests as Maendeleo ya • Wanawake was Sometimes back.

Minister Madoka's unconstItutional and illegal warning is also voiced by Hon. Julius Sankuli, his colleague in the Office of the President, on the issue of constitutional reforms. Hon. Sunkuli would expel the civil society from the constitution-making rolect if he had his way His utterances on representation in the constitution-making ess suggest that it is the government that has the final word on this issue. Hon.

232 Surikuli seems to have forgotten how state terrorism in his constituency helped him win his seat in parlIament, enbIing him to hold his ministerial position.

May NGOs and the broader civil society understand what the government of the ruling party KANU is saying. It is saying that NGOs should accept to relinquish the concessions they have fought for since the era of one-party dictatorship. It is saying that the civil society has no voice in political matters and should be expelled from the constitution-making project. It is saying that the NGO Co-ordination Board has the power to deregister NGOs which criticise the government, that is NGOs described as "political," "radical" or 'dissident' or meddling in politics" simply because such NGOs are exercising their constitutional and legal rights. The Board is being told that the law as reflected in the constitution and in the NGO Co-ordination Act, 1990 should be ignored.

The Kenyan Government, in its arrogance, needs to be reminded of the warning which the great Kenyan hero, Kimaathi Waciuri, gave to its predecessor. Her Majesty's Government: 'It is better to die on our feet, than to live on our knees. "NGOs arc not about to give up their constitutional and legal rights. They are not about to succumb to intimidation and compromise the freedoms they have enjoyed for the last eight years. By constantly intimidating and attacking NUOS, the government has declared war on the civil society, and by extension, on the people, who are the government.

233 4111144 I

kL 234 D. General Social Commentary: An Alien View Mugambi Kial

Observing the goings-in and out at a restaurant in Kampala recently, 1 felt a sudden alienation. For whereas the management was vigorously conducting body-searches and inspections on all the in-corning black clientele, it was allowing wazungus (whites) to come in unhampered.

My mind immediately turned back to my own experience in another restaurant in Nairobi barely two weeks previously. I had sat unattended for approximately twenty- three minutes between 3.05 p.m. and 3.28 pm., as if I were invisible, while the waiters and waitresses busied themselves at the providing premium service to wzungus, most of whom had come in later. In fact, they would have continued to ignore me had a colleague not joined up and, complaining1 drawn their attention to our table. a

Clearly, we have become aliens on our own continent. The Tanzanian government has dropped all pretenses in this respect. It recently unearthed "aliens" in its midst, most of whom have served at its highest levels. Curiously, however, it emerged that it was only some prominent individuals who were critical of the poor governance and human rights performance of that government who now need to prove their citizenship.

And here lies the crux of the matter. Specifically because the state will not allow wancinchi (the citizenry) to participate in its own gvernance, the latter become alienated and those who protest this are then branded "aliens:' Conversely, the state is now also an alien because by its own actions it loses the legitimacy and moral authority to rule.

And this really is a scenario of the pot calling the kettle black. On the one hand, there is the ruling elite in Tanzania applying the Zambian experience and specifically, the "Kaunda Treatment" as a convenient response to its critics, and the Kenyan branding those critical of the status quo as "amorphous" individuals who should not enjoy their universally enshrined human rights.

Yet what is more amorphous than ruling elites who manufacture consensus, rig elections and, oh, forget to call party elections for a full decade? And what is more alien than a government whose head of the civil service is determined in Washington and appointed in London in secret "high-level" meetings with officials of the Bretton Woods institutions?

Right from the 1884- 86 Berlin Conferences that determined Africa's destiny without her consent, we have remained aliens in our little geographical territories, carved out e image of our coloniar masters and forever been condemned to social, political, omic and cultural sLavery.

236 And this is the vefy reason wily we are invariably treated like mitumba (second-hand) citizens by our fellow compatriots. we have totally failed to shed our colonial yoke and continue to carry the brand of our new imperial masters. Indeed, whereas at independence we carried the labeJ "Made in England," we now go by the new brand of "Made in Washington," signifying the hostile takeover by 8ig 8rother that occurred during our first four decades of so-called independence.

We, tragically, remain at the bottom of the global food chain, the village. Despite our immense human and natural resources and our colossal intellectual and cultural wealth, we are not a priority in the foreign policy of anyone of note, as lucidly put forth by President George W. gush during his recently concluded successful presidential campaign.

And, among us, there are those who continue to assiduously struggle for us to remain at the bottom. ThiS is because it guarantees them a place , as the big fish in a small pond because the inverse situation would make them small fish in a big pond.

Look, for instance, at our pohtics. The current political vogue among the majority of Kenya's political practitioners seems to be the mobilization of ethnic kinship for political furtherance. This has seen the rise in political initiatives such as the Akamba (unless we are given the Vice-Presidency) Unity, the Luhya (it Is our time to eat) Caucus, and lately the GEMA (Gikuyu. Embu, MCrU Association - arise again House of MumbO.

The problem here is that the capture of political power by a tiny fraction of the nation to the exclusion of the rest is not only undemocratic but also creates alienation. If our politicians represent only their various tribal affiliations, who represents the nation?

Clearly, the logical progression here is that ethnic hostilities deepen and soon some are being called "natives" while the others are referred to as "indigenous." And then the ethnic cleansing begins as tribal chieftains seek final solutions to the tribal problem.

And alienation here is not just about politics. It propagates itself in our social spheres, in our economies and in our culture. Socially, we have seen certain groups of people being treated like dirt. For example, how come unaccompanied women are conventionally prohibited from enjoying the unfettered use of bars and restaurants? is it not possible for commercial sex workers to ply their trade while accompanied? And why is there no penalty imposed against those who subscribe to their services? And dare we ask what will (not) happen if an unaccompanied nizungu or coloured lady walked into the reputable establishment?

With regard to the economy, there is also rarely any solid basis for the exclusion of wunanchi in the enjoyment of the national cake. In Kenya, farmers continue their loud lament to be included in the management of their sector. Moreover., we have seen the informal sector and especially hawkers brutalized by the state when it would have been more productive to create mechanisms to include them instead. For exampce4 why not block off some streets between specific times and let them ply their tra

237 Divide and rule clearly seems to be the pervading philosophy In ascendancy. CuItura1ly, it finds application in instances when our unique cultural practices are used to create illusIons of superiority or inferiority among us. A good example of this is the oft- repeated statement that an uncircumcised man cannot become head of state or that we are not yet ready for a woman president. The connection between the state of one's genitalia and the quality of their leadership continues to escape me. Yet there are those who will continue to insist on these kinds of divisions, forever seeking "aliens" in our mIdst. My constant challenge to those with expertise in genomics is to find the "tribal" gene; the gene that, for example, relates the Gikuyu to being quick fingered, the Akarnba to treachery, the Luo to flamboyance and showmanship and the Luhya to indecision.

More likely they will find out that these paradigms evolved from the same colonial thinking that said that Africans were inherently backward and stupid. It is the same thinking, naturally, that created the myth that Hannington Speke discovered the source of the Nile. And much as it may seem to some to be empty blabber-dash, this is the thinking that continues to bestraddle us, continuously jeopardizing any qest for a more just, equitable and humane society.

consequently, we must peacefully and consciously combat it, and the attendant alienation that it nurtures. Martin Luther King once said that, "A (wo)man cannot ride your back unless it is bent" We must refuse to be treated like second-class citizens in our own countries or anywhere else in the world. We must refuse to play second fiddle in our governance. And yes, we must refuse to be ignored in our restaurants.

Ultimately, we must refuse to be shunted away from the mainstream for whatever reason and in whatever manner. So whenever a politician seeks to s'hut you up or question your participatIon in the affairs of the nation by asking you whom you purport to represent while airing your views, just say that you speak for democracy. Most likely, they will not understand what you are saying, but then who said that they are In this because they understand democracy? I

hi6k 239 Human Rights: The New Religion? MIKEWA OGADA

The Concept of Human Rights The promotion and protection of human rights is recognised by the peoples of the world and many governments as essential to the survival and progression of humanity. The nascent body of human rights law has gradually proved to be integral En regulatIng the exercise of political, economic and cultural power, thus countering destructive practfces like tyranny and aggression that have caused great suffering to millions of people throughout the history of humankind. Consequently, all the instruments of human rights law revolve around three basic tenets; the right to life, the right to liberty and the right to property, which are indispensable to fostering and safeguarding the most desirable environment for each individual to realise her or his full potential.

The concept of rights has been with us for centuries and its formalisation into a distinct branch of law during the 20th Century has been of the utmost importance in solidifying the observance and respect it is now accorded. In 1948, the General Assembly of the United Nations (UN) proclaimed the Universal Declaration of Human Rights (UDHR). The UDHR, which consists of 31 articles, serves as the most important source of human rights law, broadly envisaging equality before the law, the enhancement of the quality of life for all people, the end of all cruel, degrading and inhuman forms of treatment in addition to the enjoyment of civil and political rights.

In 1976, the International Covenant of Clvi! and Political Rights (ICCPR) and the International Covenant of Economic, Social and Cultural Rights (ICESCR) came into force. The two covenants, which serve as the enforceable legal instruments, created part of the International bill of human rights" that has legal and moral force that binds ratifying governments to respect and enforce the rights of their citizens. The ICCPR broadly seeks to advance and protect the rights of people to elect their governments, assemble freely, participate in political activity, move freely within their countries, be privy to information that is in the public interest, participate in political activity and to enjoy religious freedom among other rights. The ICESCR compliments the provisions of the former covenant by promoting and protecting the right to ownership, the rIghts of workers and basic rights such as those to health, education, food, and cultural identity

Other important international instruments that safeguard human rights are the Geneva Conventions on War that regulates the conduct of warring parties, with a view to is protecting the rights of civilians, humanitarian workers and cultural relics. Complimentary regional international law that has gradually developed over the la two decades is similarly important and exemplary cases are the European, Ame(

239 Human Rights: The New Religion? MIKEWA OGADA

The Concept of Human Rights The promotion and protection of human rights is recognised by the peoples of the world and many governments as essential to the survival and progression of humanity. The nascent body of human rights law has gradually proved to be integral in regulating the exercise of po!iticah economic and cultural power, thus countering destructive ractices like tyranny and aggression that have caused great suffering to millions of people throughout the history of humankind. Consequently, all the instruments of human rights law revolve around three basic tenets; the right to life the right to liberty and the right to property, which are indispensable to fostering and safeguardirg the most desirable environment for each individual to realise her or his full potential.

The concept of rights has been with us for centuries and its formalisation Into a distinct branch of law during the 20th Century has been of the utmost importance in solidifying the observance and respect it is now accorded. In 1948, the General Assembly of the United Nations (UN) proclaimed the Universal Declaration of 1 -luman Rights (UDHR). The UDHR., which consists of 31 articles, serves as the most important source of human rights law, broadly envisaging equality before the law, the enhancement of the quality of life for all people, the end of all cruel, degrading and inhuman forms of treatment in addition to the enjoyment of civil and political rights.

In 1976. the InternatIonal Covenant of Civil and Political Rights (ICCPR) and the International Covenant of Economic, Social and Cultural Rights (ICESCR) came into force. The two covenants, which serve as the enforceable legal instruments, created part of the "international bill of human rights" that has legal and moral force that binds ratifying governments to respect and enforce the rights of their citizens, The ICCPR broadly seeks to advance and protect the rights of people to elect their governments, assemble freely, participate in political activity, move freely within their countries, be privy to information that is in the public Interest, participate in political activity and to enjoy religious freedom among other rights. The ICESCR compliments the provisions of the former covenant by promoting and protecting the right to ownership, the rights of workers and basic rights such as those to health, education, food, and cultural identity,

Other important international instruments that safeguard human rIghts are the Geneva Conventions on War that regulates the conduct of warring parties, with a view to protecting the rights of civilians, humanitarian workers and cultural relics. Complimentary regional international law that has gradually developed over the las two decades is similarly important and exemplary cases are the European.. Amer 1

239 and African human rights charters that envisage regional observance and enforcement of human rights law. In some countries, systems of constitutional governance that integrate human rights law into their provisions are also particularly effective in ensuring that rights are respected and enforced. Such constitutions abound in the developed world, with those of the United States and France serving as important examples.

Increasingly, issue oriented human rights treaties such as conventions protecting the rights of minorities, women and children have prolIferated during this period in which human rights scholars have christened "The Age of Rights." in "The Age of Rights", most UN members have ratified most of these instruments and are theoretically bound to respect and enforce them within their respective countries. However, there remain great challenges to the universal adoption of all human rights laws. A number of countries, including those that are developed, are yet to ratify some key human rights treaties and conventions such as those of International Labour Organisation (110) and more recently, the treaty establishing the International Criminal Court.

THE HISTORICAL BASIS OF HUMAN RIGHTS

Medieval Europe and the Concept of Rights The western-centric roots of the concept of human rights as we know it today may be traced to the medieval ages that followed the fall of the Roman Empire in Western Europe. The Germanic 'barbarian' communities from as far north as Scandinavia that invaded Europe during this period., and progressively consolidated territory and political power, included the Franks, Gauls and Saxons among other communities. Over the years they blended Roman culture with their own and Christianity. This unique collaboration and the high value placed by Germanic culture on individuals blended into a system of philosophical thinking in which all were equal, at least all men. consequently, the respect of law was emphasised, breeding communities that gradually developed a strong respect for legal process and liberty. Society grew to consider labour a dignified pursuit and the sanctity of the individual was extolled.

Religion and the Concept of Rights The strong pre-occupation with Christianity in the later middle ages (I WO— 1 500A0) to some extent tent its virtue of humanitarianism to the concept of rights. However, the concept of rights would only flourish in an environment where Christianity could be challenged The Christian religion at the time demanded a high level of submission to the church and negated the concept of individual rights. This period of near hysterical piety was followed by the "Enlightenment" in which scientific thought and methods developed, setting the agenda for a serious challenge to established religion. Perhaps = the two greatest challengers to Christian thought were Nicholas Copernicus and Galileo. sing astronomy, the two refuted heliocentric and other theories that the Church had 1 to explain the workings of the universe, thus furthering the secularisation of f. The intellectual developed in this period when philosophers like Spinoza, .. 240 Montesquieu. Rousseau, Locke, 1-lobbes, Flume, Voltaire and Smith emerged to develop and synthesise liberal thought. Areas of reasoning included ethics, politicar and intellectual freedom, the concept of social contracts, limited government, laissez- faire economics and the belief in man's inherent goodness. This gave rise to anti- monarchical sentiment, as monarchies had long- cloaked their despotism with the skillful manipulation of religion. The result was new formation of liberal democratic political ideology..

Political History Liberal democracy exists in its most original form in the Scandinavian countries of Sweden, Norway and Denmark. It was the first political ideology to integrate political and economic rights and freedoms. While advocating the right to liberty, the system also advocates for the free availing of basic needs to the people by the government, including education, food, health and infrastructure. Political revolutIons in America and Europe in the 1 7th and i 8th centuries were responsible for giving liberal democratic principles a legal foundation. The American War of Independence, which w'as in reaction to British authoritarianism, resulted in the establishment of a constitutional dispensation that respected individual, economic and political liberty and would later form the legal basis for the LIJJFIR. The French revolution, a reaction to absolute tyranny, was spawned by the liberal political ideals that had been popularised by the American Revolution. In the French Revolution, large tracts of land owned by the aristocracy were seized and a Declaration of Rights proclaimed. The French now supported greater secularisation, and the national principles of freedom, equality and brotherhood.

Economic History and Right The end of feudalism and the advent of the industrial revolution witnessed a significant decrease in economic tyranny or exploItation. With the growth of republican forms of government In the 18th century in the US, France and Britain, the right to ownership was affirmed, as was the pursuit of indivIdual interests and pleasure. Making wealth became something of a duty, and the migration of millions of people from rural areas to towns for purposes of betterIng ther standards of living loosened family and community ties, which in turn entrenched more independence and individualism.

Rapid economic growth led by new scientific and technological developments led to greater productivity, and thus wealth and the entrenchment of capitalism. To check the exploitative nature of capitalism, unionisation of workers emerged in Europe as a means of agitating for workers' rights while employer- employee relations gradually became to be regulated to strike a balance in the protection of the interests of the two. ZZ The emergence of communIsm in Russia in the early 1900s threatened democracy and free market economic thought, which were now inextricably linked with the concept of rights, by extolling economic equality by restrictIng private ownership of proper and limiting political and individual freedom

241 HUMAN RIGHTS IN PRACIICE

The 20th Century: A Challenging Period for the Concept of Rights The end of slavery and the rapid expansion of imperialism in Europe led to a period of world coloffisation by the great powers of Europe, in which numerous grave atrocities including killings, torture and forced labour were committed. The killing of thousands in British East Africa and millions in Belgian Congo by the British and Belgians, respectively, are only but a tip of the iceberg. The emergence of global war: enter the violation of the right to life at a scale that had never been witnessed before. At least thirty million people were killed in the First and Second World Wars within a period of 20 years. The Cold War would entrench global warfare as proxy wars were fought in the quest for the dominance of communism over liberal democracy and vice-versa. The one-party state came into being in the developing world during the mid-50s, culminating in brutal military governments in countries such as Nigeria. Zaire, Ugand& North Korea and Iraq. Such systems committed some of the worst atrocities and violations of human rights in modem times. Intermittent modern conflict in geopolitkal hotspots such as those in Sudan, Rwanda, the Balkans, the Middle East and Indonesia are now perhaps the biggest political obstacles facing the entrenchment and respect of rights.

The era of globalisation in which international multilateral financial and development organisations such as the IMP. World Bank, WTO, MAI and UN are increasingly prescribing policy solutions for socio-economlc development that are aimed at spreading the free market system or economic liberalism worldwide. There is overwhelming evidence that these policies have had and continue having negative effects on socioeconomic rights, as the motivations and roles these institutions and leading world powers, advanced regional economic blocks and multinational companies are rationalised by prospects of economic gain through the exploitation of millions all over the world. Poverty has largely increased in the developing world during this period, in itself constituting a violationof socioeconomic rights.

Victories In the Promotion and Protection of Human Rights In 1946, a political settlement following the Second World War was reached between 50 nations and the Charter of the United Nations and its bodies introduced. Among some of the core functions of the UN was, and still is, the promotion of the respect for human rights and maintenance of international peace. Atrocities such as the holocaust caused such intense outrage that international humanitarian law regulating the conduct of war was developed. In 1949, the last of the Geneva Conventions was signed and was aimed at protecting civilians in times of war and permitting humanitarian aid in wartime. Prisoners of war were accorded rights; torture and mistreatment of children and pregnant women were decried. Indeed, the Nuremberg trials in which many German (read Nazi) war criminals were prosecuted and sentenced to death were Ily based on the Geneva Conventions. Another major victory in the realisation of rights was de-colorilsation In the 1950s and 1960s. Millions of people were liberated from colonialism and accorded their right to self-determination. The American civil rights movement, which soon followed, established equality of all people before the law in America, ending desegregation and extending the right to vote to the black population in the US. Women too were liberated shortly after in the 1970s. The Women's Revolution saw the establishment of full universal suffrage in many parts of the world and the acceptance of women's participation in economic life and the development of affirmative action that enabled women to attain positions of authority in political, business, social and even religious establishments.

Following the Women's Revolution, the end of communism and apartheid restored the rights to life, property and liberty in the former USSR and South Africa. Other more recent exampies of rights victories are the overthrow of former Serbian dictator Slobadan Milosevic and the rejection of both Ivory Coast military ruler Robert Guei and Peru's former president, Alberto Fujimori. Human rights law may possiblybe applied against former Chilean dictator, Augusto Pinochet, who is now facing primes against humanity in Chile. Overall, the stable democracies of the world including the G7 countries, WeStern countrie, India, and growing democratic stability in countries such as Botswana, Namibia and South Africa, are perhaps some of the greatest rights victories to date.

The Mechanisms Assisting the Enforcement of Human Rights Law

The state remains the major enforcer of human rights through its apparatus that theoretically includes the legislature, judiciary and government The UN System, that is comprised of the Security Council and General Assembly and UN Charter bodies such as the Economic and Social Council (ECOSOC), the Commission on Human Rights, sub-commissions on women, minorIties and so on, also conducts research on a global scale on human rights vIolations and issues. There also exist the International Court of justice and International Criminal Court, which handle international cases involving the violation of human rights. Regional courts such as the Inter-American Human Rights Court and the European Human Rights Court also set precedents in cases of human rights violations. Over the past two decades, national and international civil society has increasingly played a role in investigatIng human rights violations and making recommendations on the same.

DipJomacy remains the favoured method of enforcIng human rights law, however, economic sanctions in the cases of Iran, Iraq, Libya and North Korea remain in use. The withholding of overseas development aid, like in the case of Kenya over the past three years, has had limited enforcement effectIveness in some parts of the world. The UN peacekeeping systerm though plagued with serious problems, has been active in diffusing military conflict in various regions of the world. The use of regional and bilateral military intervention as in the case of the North Atlantic Treaty organisatio (NATO) In Kosovo has also proved effective in ending human rights violations. O

243 same note, revolutionary resistance in countrIes such as uganda and indonesia has been integral in countering human rights violations.

THE HUMAN RIGHTS SITUATION IN KENYA

The Bases for Human Rights Violations in Kenya Kenya's constitutional provisions have been widely abused by successive governments, sInce they give the executive near imperial power. Outdated and repressive colonial laws remaIn in the country, limiting a host of civil and political liberties The country's brand of politics, which favours patronage or clientis m as the p1 liars of political support, has led to abuses of power that have affected the political independence of communities and resulted in bad governance and corruption augmenting poverty and other social ills. The protection and promotion of human rights in Kenya has never been a priority of any administration and consequently the human rights situation has deteriorated sharply since independence. Many concur that the autocratic tendencies of the one- party state remain since the government continues to use its machinery to repr6s Kerlyans while denying Kenyans the right to participate in decisions affecting their lives.

Human Rights Violations Violations ofthe right to life have continued through extra judicial executions, torture, mob violence, banditry and the use of the death penalty. On the civil and political front, the government has continued to violently suppress its political opponents and to violate the freedoms of speech and press. The judiciary still experiences executive interference and is plagued with corruption and mismanagement, whIch negatively impact the administration of justice. Socio-economlc rights remain to be realised because of rampant corruption in the public sector, adversely affecting the delivery and quality of social services, illegal allocations of land also deny many the right to property, The downturn in the economy has made it particularly difficult to find meaningful employment and many people remaIn below the poverty fine, unable to cater for their own basic needs.

Civil Society and Human Rights in Kenya The civic sector of the civil society in Kenya has developed into a vibrant community that is involved in civic and human rights work throughout the country. Non- governmental organisations (NGOS) dominated in this area though religious organisatioris, women and youth groups social movements, political organisations, individuals and some international humanitarIan organisations make significant contributions. At the helm of human rights work in Kenya, is the Kenya Human Rights CommissIon (K1-IRC), which was established as an NGO in 1994 to monitor and conduct research into human rights violations, carry out advocacy work to end human rights ations and outreach and educational programs to increase awareness of human There are other important NGOs In the human rights fraternity including, the 244 Law Society of.Kenya. international Federation for Women Lawyers (FIDA) and the International Commission of Jurists (ICJ) among others that are involved in human rights work

Challenges to Human Rights in Kenya An immediate challenge to the protection of human rights Is the impending 2002 General Elections. Coupled with the raw brand of presidential succession politics and a possible change in the system of constitutional governance, there is the risk of political violence again erupting at a larger scale than in 1991 and 1997. The total disregard of the Inter-Parties Parliamentary Group (IPPG) reforms, most notably through the repression of the opposition and restrictions on civic education by NGOs, poses a risk to political stability and the realisation of rights in Kenya. On the socioeconomic rights front globalisation threatens to further increase poverty in Kenya while the integration of all rights is put farther away as since disproportionate emphasis has been placed on civil and political rights issues.

THE MEDIA AND HUMAN RIGHTS

Media Power In his studies into the concepts and centres of power, Harvard Economics Professor John Gaibraith has argued that the media is one of the most powerful institutions in modem society because of its power to influence and shape public opinion by winning the submission of society to its own perspectives and interpretations of contemporary affairs Through reliance on its highly organised structure, its financial power and charismatic personalities, the media plays an important investigative and research role that is crucial to the generation of information. AdditionaLly, it is an important vehIcle for educating and sensitising the public, as much as it enhances participation in public life. The medias investigative role has been particularly critical to the protection of human rIghts throughout the world as It is through the media that public opinion has been shaped to inform policy against war and on disease, famine and autocracy among other ills.

The Media and Human Rights in Kenya The Kenyan media has been especially vibrant in contributing to democratisation and awareness of rights since the re-introduction of political pluralism. The media has = serialised information from inquiries into political violence, unveiled corruptIon scandals and brought to light other violations of human rights in Kenya. The media in Cb Kenya has had limited success in shaping public opinion on issues of human rights through in-depth analyses of developments in the political, economic, social and legal spheres. However, the work of the media in exposing violations of human rights Ct and creating awareness on the same remains inadequate as there are many po!itIca economic and legal obstacles to circumvent.

245 Challenges to the Media's Role in the Promotion of Rights Political interference and repression of the media by the government are perhaps some of the most glaring factors that negatively effect the media's performance. Editorial policy is affected by such interference and the result is self-censorship. The legal framework, whereby legally unsound precedents adyerse to the enjoyment of media freedom have been set in recent libel cases, also contributes to fear within sections of the media resulting in more self-censorship. The inaccessibility., due to poverty and government restrictions, of media products and services to the majority of Kenyaris is also of great disadvantage to the full realisation of the media's potentiaL Finally, the issue of human rights training in the media remains a critical factor should the media become a more vibrant participant in Kenya's rights discourse and practice.

LL - 246 Human Rights '98: A Tale of Two Cities MUGAMBI KIAI AND WILLY MUTIJNGA

Right after the bomb blast in Nairobi on August 7, 1998, someone said that the devil had paid a visit to Kenya. This tragic event left at least 253 people dead, over 5,000 others injured and a traumatized nation in mourning. Unused to this level of violence, Kenyans were shocked that anyone could countenance such a gross violation of theIr right to life and compromise their security so horrifically, for whatever purpose.

But in these figures one could also read another story. August falls in the third quarter of the year, where in 1998 there was a reported total of 344 deaths from cases of humanrights violations, unrelated to the bomb blast. Hence, between July- September, 1998,. there were a massive 91 more lives (or 359% more lives) lost due to domestic abuses of human rights in Kenya than during the bomb blast in Nairobi. .

Shocking, isn't it? This is the tale of two cities. Kenya isa country that is both flagrantly violated and violates flagrantly. Some might argue that this is because nothing is perfect. But how far from perfect do we want to be?

On the positive side, one can immediately mention the consensus that has almost been reached on the Constitutional Reform front. After intense lobbying, agitation and even death, Kenyans can now say that they are concretely on the path to constitutional reform. A word of caution though. There are valid misgivings that need to be addressed, both on the entire process and the structures within it. Hence, there is an urgent need for all Kenyans to monitor the review process, rather than Sit back and think that at last they have reached the promised land. The process has to be de- politicized. The credibility of the people who will be directly involved in the process such as the Commissioners, as well as the structures they create will hinge on this. There will also need to be massive civic education on Constitutional Reform carried out all over the country.

Another positive thing in 1998 has been the growth and real visibility of the resistance culture in Kenya. By this we mean that there was a greater number of cases where individuI citizens in that capacity or in organized groups stood up against violations of the whole gamut of their rights. This indicated that they were aware of their rights and also greatly facilitated the process of bringing rights awareness to all Kenyans.. There are several examples here: the teachers strike; the events in Karura Forest, and; I the demolition of walls on grabbed lards, for example in Mama Ngina Drive Park in Mombasa. This species of activism has been a vital wheel in the running of the reform engine In Kenya Indeed, even the realization of Constitutional reform can be traced I to It. A

But activism cannot only be seen to be a preserve of the streets. There, arenas of activism, as was seen in Kenyans' readiness to take cases to court as well as Parliament where examples of corruption and bad governance were tabled before the house. The motion of no-confidence tabled by Hon. James Orengo in Parliament is another example here. The Press, especially that which is not controlled by government, played a very crucial role in 1 998 as pressure points for the agitation for change and good governance. A case in point is the still-unresolved issue of the vice- presidency and the way it has remained in the ntional spotlight despite a very stony and intimidating silence from the officialdom. This notwithstanding, the press has been awash with pieces on this issue. Not too long ago g this issue would certainly have been treated with see-no-evl, hear-no-evil and speak-no-evil caution. Remember the celebrated threat in 1976 by the tired and retired Charles NjonJo that would have made such talk treasonable?

And all this outcry and activism has borne some fruit. The government has made some concessions in various areas related to human rights. For example, the Standing Committee on Human Rights in Kenya released Its first public report. Mr. Justice Richard 0. Kwach also released a public report that accused the judiciary of corruption, neglIgence and other varied abuses of office. The Police force also came out better than in previous years by showing more readiness to acknowledge fault and listen to criticism. There is a committee of senior police officers that is collecting views on what needs to be done to reform the police force. This is welcome indeed. On the economic front, there were the Mombasa and Mbagathi conferences to which the private sector and other key economic players in Kenya were invited. This indicated that the government is ready to accept that national economic bankruptcy is looming. Although this can be criticized as an invitation to the divorce while there was none to the wedding, it is positive given the immense intellectual potential outside government.

The issuance of radio and television licenses for various independent actors cannot fail to be. seen as a plus in the human rights chapter of 1998. The right to the freedom of the press is always better served in this kind of environment. Even though it took some time, money and patience, that the government eventually saw sense In allowing alternative sources of ideas to enter the broadcasting fIeld should be lauded.

Another welcome development in 1998 was the entry of development NGOs into the arena of human rights. For a long time, the world of non-governmental organizations has been dominated by a divide between the development NGOs on the one hand and the governance and democracy (or legal and human rIghts) NGOs on the other. Come the Social Charter and in one document, this rift was brIdged. The Charter was crafted with the blessings of such development NGOs as Action Aid, and addresses basic needs such as food, shelter, health and education as basic human rights. It is hoped that there will be further concrete activity around this theme so that the work already done does not end tip as lip service to these fundamental human rights.

e negative side in 1998 were some constants that remain the bane of fenya's rights record. No amount of public relations or even disinformation by the ent can ever achieve much if these are not urgently corrected. They include Jja,n 248 corruption, lack of security, police brutality and harassment, prison conditions, domestic violence and mob violence.

CorruptIon was on the upsurge in 1998, despite the low ratings Kenya continually gets from such creditable organizations as Transparency International. indeed, official corruption has been one of the reasons why the Bretton Woods Institutions contInued to deny Kenya foreign aid. And one lesson that was constantly lost on the Kenyan government was that it does not matter how many times you pass the hat around: if it has holes that lead to the pockets of fat cats, then funds will not be available. What rankles about corruption is that due to: its Cyclical nature, it ends up tormenting the life of the ordinary rnwananchi by denying him or her access to such basic needs as food, good roads, education, health and so on. This is a denial of his or her social and economic rights. And it is the worse that senior government figures named in corruption scandals - such as F-Ion. Jackson Kalweo and the improper tender for drugs - have neither come up with convincIng explanations nor been disciplined by their superior(s).

Insecurity continued to bedevil Kenya in 1998 as in previous years. This was embodied in the numerous cases of cattle rustling, banditry, political clashes and so on and continually led to the abuse of the fundamental rights of Kenyans. it has been constantly stated that a government that can not guarantee the security of its people has no legal and moral authority to rule. The fact that these kmds of abuses still occur in Kenya without any feasIble explanation has lent credence to suspicions that the government is an accomplice to them. This Is coupled with the fact that the government refused to sign the Peace Accord, which was largely facilitated by religIous organisations in Kenya in 1999 and makes it truly ominous. It is a fundamental breach of the social contract between Kenyans and their government. And It is one of the biggest hurdles that needs to be dispensed with before any meaningful activities around Constitutional review can take place.

Police harassment and brutality and the appalling prison conditions were another painful chapter in 1998 for Kenyans. On the police, there were numerous cases of suspects in court complaining of torture. It should be recalled that it was less than two years ago when the Kertyan government ratified the Convention Against Torture and Other Cruel, inhuman or IDegrading Treatment or Punishment in February 1997. One also recalls the merciless and indiscriminate shootings of the late James Ochola Odhiambo (Jordan) in July 1998 and a matatu driver and his tout in December 1998. The conditions in Kenya's prisons have not improved since they were baptized death chambers by Justice Emmanuel O'kubasu. It is, however, to be hoped that with the enactment of the Community Service Orders Bill in 1998, the massive overcrowding there will be reduced.

Domestic vIolence glaringly remained In focus in Kenya in 1998. This was despIte concerted efforts from several quarters to eradicate it In fact, the death of 8etty Kavata, a vIctim of this kind of violence from her policeman husband, only served t bring the reality of this form of violence home. The unabated cases of wife-bea and child abuse in 1998 resulted In unnecessary losses of life and causedj1 249 psychological and physical injury to the victims. It sometimes reminded one of a disease without a cure.

Mob violence picked up in 1 998 from where it had left off in 1997. The advocates for mob-violence still do not appreciate the principle of innocence before being proved guilty. Equally bad is the fact that to kill an individual suspected of stealing a wheel cap or head lamp of a car and then let off - on a legal technicality - the white collar criminal who has fleeced the exchequer of hundreds of millions of shillings is highly improper. For aren't we the ones who say that the rich and advantaged should not enjoy greater rights than ourselves?

The standoff between the government and foreign economic interests as represented by the IMP and the World Bank was another important constant that affected Kenyans' social and economic rights This was due to among others, corruption (as already stated above) and the lack of a proper IiberaJzation policy in Kenya. It also saw the related development of increased economic nationalism in Kenya as well as the early retirement of yet-to-be-of-age citizens.

It is also worthy to note that 1 998 did not see the direct translation of the 1997 IPPG reforms. For example, public gatherings were frequently dispersed and the goodwill that had accompanied the pomp, acclaim and pageantry of the passing of these reforms seemed lost in all this. One of the most ironic examples of this failure was the attempted dispersal by the police on December 5, 1998 of a march in Nairobi to protest against violence against women, which was to be flagged of f by I-Ion. Charity Kaluki Ngilu. A few days earlier, the case of the late Betty Kavata's brutalization at the hands of her policeman husband had just been publicized.

And the whole succession issue got a life of its own in 1998. There was the non- appointment of the Vice-President. Then the Bill on retirement benefits of Presidents in Kenya tabled by Hon. Anyang' Nyorigo. Into this Was thrown the lengthy attempt by the government to cleanse itself of the murder of Robert Ouko seemingly out of the blue. Then there was the book by Andrew Morton that painted President Moi's very colourful history totally white. Indeed, an attempt by the President to woe the international community to his side at this critical stage of Kenya's history was read here.

At t.he, international level, it was another veritable tale of two cities. On the positive plane, the world celebrated the 50th anniversary of the Universal Declaration of Human Rights on December 10, 1998. This came hot on the heels of a historic ruling by the Judicial Committee of the House of Lords in Britain (the Law Lords) that had stated that General Augusto Pinochet Ugarte could be extradited from there to Spain to face charges of several crimes against humanity despite his argument that he was legally immune from such proceedings as the former head of State of Chile.

This ruling, however, was recently revoked and Pinochet awaits another trial. It is a ial that will continue to raise a lot of interest in human rights circles because should aw Lords say that Pinochet is still liable for trial, this will be a further measure to

250 curtail impunity in the world, which simply defined means the freedom from punishment or injury.

Other pluses on the international human rights front included the adoption on July 17, 1998 of a treaty to establish a permanent International Criminal Court (ICC). The ICC has the potential of worldwide jurisdiction to provide justice to victims of genocide, crimes against humanity and serious war crimes to justice It will be empowered to pierce the shield so often erected whenever such crimes are prosecuted that those who perpetrated them are legally immune because they were conducting affairs of State. This has led to a blanket of impunity worldwide. The ICC is also crucial because unlike the temporary tribunals set up by the United Nations to prosecute those behind the atrocities in Rwanda and the former Yugoslavia, it is permanent and will be operative prior to the commission of the crimes.

The convictions and sentencing of Messrs. Jean-Paul Akayesu, the former Mayor of the Rwandan town of Taba and lean Kambanda, the former Prime-Minister of Rwanda by the UN international Criminal Tribunal for Rwanda for various crimes against humanity was another positive milestone in 1998- it was not lost on the worLd that rape was included as a crime against humanity, which expanded the scope of control that the world will in future exert over suspects in such circumstances.

Also in Africa, an African Court on Human and Peoples Rights was established in June 1998 and when operational will, among others, interpret the application of the African Charter on E-Iuman and People's Rights. Hopefully, this will see further tightening of the human rights regime in Africa.

However, on the negative side were the unfolding events that enhanced insecurity and jeopardized the right to life worldwide. This Included the wars in the Great Lakes Region, Kosovo and Angola as well as the bombings of Nairobi, Dar-es-Salaam, Afghanistan. Sudan and Iraq. The nuclear standoff between India and Pakistani was another disturbIng page in this chapter.

On the internatIonal economic front, figures indicated that poverty is increasing worldwide. Even in more advanced societies such as Germany and Belgium, unemployment and honielessness began to crunch. Indeed, it has been noted that the politicaL renaissance of parties, in all these economies, that embrace some form of welfare system is due to this trend. It was also noted that the wInner of the 1998 Nobel Prize for Economics, Amartya Sen, is one who has always espoused some form = of social safety net rather than the vagaries of a totally free and open market.

That the financial and trading institutions that dominate the world's economy are yet to show more sensitivity to the plight of the world's poor is still worrisome. 1ndeed the whole power structure in the world where there is one superpower and several potential ones waiting in the wings is not only inequitable but also potentially inimical to the pursuit of happiness worldwide. A lot more certainly has to be done democratize the world.

251 And this is the challenge we carry forward into the new year. 1999 will present unIque challenges, both old and new. Are we ready for it? Only time will tell. But as we proceed, some instruction from the words of Mahatma Gandhi is appropriate: You must be a change you wish to see."

I I

6" h6 I. 252 FuNding of Politics in Civil Society in East Africa Willy Mutunga

..forei.gn support to civil society is not about the breadth and depth of actually existing, largely rural-based, eivil society. Donors are not funding the popular aectors of civil society, btit are strengthening a new African elite conuitted to promoting a 1imitd form of procedural democracy and structural adlustment-type economic policies. Julie Hearn li Background Two very interesting publications on the fundihg of politics in civil society in East Africa cover Llganda and Kenya respectively. While there has been a lot of writing on the foreign interests reflected in funding generally the world over, these publications are very specific. The publications discuss the various bilateral and multilateral donors, foundations, non- governmental donors and northern NGOS involved in the funding politics in civil society. The issue of politics in clvii society revolves around the principle of non-partisa n ship. This principle has been interpreted by the civil society, and in particular some sections of civil society, to mean that civil society is and should be apoliticaL Neutrality has meant silence when definite political views can be expressed. The civil society has definite political views, and those sections of civil society (mainly the development and religious sectors) that argue otherwise basically ratiorialise their support for the status quo. While civi' society should not be appendages of any partisan interests, it must participate fully in the politics of the day. Nobody has ever argued that the civil society should not be card-carrying members of political parties. Rarely is there a debate whether or not foreign interests reflected in the funding of civil society are non-partisan. Nor does civil society debate whether donor-led projects compromise their positions. it is fair to say that civil society has rarely discussed why this aid is given in the first place. Rarely are donor politics analysed and understood, What seems to be known thoroughly are the areas that the donors will fund.

There are certain initiatives in civil society that are very clear on donor politics and seek support on very clear lines. It will be interesting to analyse such initiatives because they reflect conflicts between donor and local interests. Besides what 1-learn says about donor interests, there is also the specific donor interet of expanding the middle class, a crucial buffer in society, which has yet to he analysed. The state is incapable of such expansion and has indeed attracted the wrath of this social group. During the mass action in Kenya in 1997. members of this group set up barricades and bur tyres in the streets of Nairobi. 253 in this article we attempt to concretise the donor interests as broadly stated by Hearn and Mutahi. We will do this by discussing briefly the National Convention Assembly (NCA) and its executive arm, the National Convention Executive Council (NCEC) as one protect that has been involved In civil society politics. We also narrate its relations with donors. This profile of the NCA/NCEC will be useful to the growing debate on constitutional change in Tanzania after the publication of the White Paper, and the ongoing debate in Uganda about the implementatIon of the current constitution and its future changes.

II: THE NCA/NCEC AND THE DONORS

A: NCA/NCEC and Politics in Civil Society The history and background to the NCA/NCEC has been told. Briefly the Citizens Coalition for Constitutional Change (4Cs) is a broad civic initiative that has agitated for a new constitution as an entry-point to discussing all societal problems in the Country. The NCA!NCEC is the political expression of this broad civic initiativc.The NCA/NCEC itself was initially an alliance between the oppositIon political parties and the various sectors of civil society. Since 1997 the political parties have left the alliance, but there are individual politicians who support the NCAJNCEC project. The political point that such an alliance made was that in matters of national importance, such as the constitution, the merging of initiative is important and the issue of neutrality does not arIse. The point was also made that in the case of Kenya, civil socIety could include opposition political parties. It was clear from this association that the civil society was saying that it could support partisan political interests If they guaranteed its survival. The performance of the NCA/NCEC clearly shows that the civil society has political views and those views can be expressed at the level of contestation of political power. Thus the calls for a government of national unity, interim government and a caretaker government where the cIvil society has an important role to play is an expression of this crucial point. Such political positions and the structures that were created challenge the traditional understanding of the activities of the civil society and challenge the principle of non-partisanship. The sector that has supported the NCA/NCEC as the political voice of the civil society has been the democracy and governance sector. Mutahi is right that thç bilateral donors have only given 10 0/0 of the funding that goes to NGOs to human rights work. It is the foundations and the non-governmental donors who are the mainstay of the funding in the democracy and governance sector. None of the NGOs in this sector can claim to sustain its programmes. Their material support to the NCA/NCEC has been negligible. Besides, this sector has had to slot the activities of the I'JCA/NCEC into its budgeted activities. What the sector has gIven in abundance to the NCA/NCEC is the intellectual resources and direction. This sector assumed that raising money for their political expression through the NCA/NCEC may pose problems for the donors and no such proposal, in my view, en submitted. Would the donors fund a proposal raised by an NGO in support olitical Initiative? The German foundations would find no problem with this. political parties through foundations that the parties have established. The LLnd 254 NCA/NCEC is currently working on a New Democracy Foundation that could raise money for its political activities. It is doubtful that bilateral and multilateral donors will fund such initiative. The foundations too may have a prcbIem The Ford Foundation, for example, refused to fund Mwangaza (the very first alliance between politicians and leaders in organised civil society, registered as a trust), claiming that the initiative was political. Mwangaza was for a while funded by the Friederich Naumann stiftung, the liberal democratic foundation from Germany.

B: The Donors of the NCA/NCEC The NCA/NCEC has been funded over time by the Dutch Embassy. HIVOS (a non- governmental donor)., the Westminster Foundation (UK) and the International Centre for Human Rights and Democratic Development (Canada), the Swedish Sida and USAID. The contribution of the Dutch Embassy went into the convenIng of the first plenary in April 1997 and was paid to the National Convention Planning Committee, the forerunner of the NCEC. The Swedish Sida and USAID contributed the convening of the third plenary of the NCA while the Westminster Foundation paid for institutional suppo -t of the NCA/NCEC secretariat for the year I 997/98. It Is common knowledge that the British High Commissioner, then Mr. Simon Hernans, campaigned furiously against the grant to the NCA/NCEC. The Dutch Embassy, the Swedish Sida and USAID refused to fund the fourth plenary that took place in February 1998. Initially there has been a commitment that the donors (DANIDA, the Dutch Embassy, Sida, USAID and HIVOS) would fund the plenary.

it has since become clear that the reason behind the USAID refusal was that the US had made the decision to strike Iraq on February 24, 1998 and the fourth plenary of the NCA/NCEC, which was going to upset the Moi-KANU regime, was not worth investing In, The us needed the facilities in Mombasa and they were not ready to eopardise their use by supporting an Initiative that was challenging the election of President Moi and his party into power.

The NCA/NCEC, therefore, has two supportive donors in HIVOS and the International Centre for Human Rights and Democratic Development, both non-governmental donors. Of the two, H1VOS bears the main financial responsibility by giving the NCA/ NCEC its institutional and programmatic support. The NCA/NCEC would do with more funds to implement its unfinished business. Part of this unfinished business is the setting up of grassroot structures that tvouid give it a popular base and a stronger movement. The NCA/NCEC is hoping that such funding will come through.

The issue of course here now is whether the donors will fund the establishment of such a movement whose political statement is pretty obvious. The donors are facing the same question in Zimbabwe where the National Constitutional Assembly (NCA) remains a movement that has poUtical expression through the opposition political parties, the main support coming from the Movement for Democratic Change (MDC). The leadership of the MDC was initially the leadership of the NCA. Upon the forma of the MDC the leadership resigned from the NCA. More opposition political 255 NCA/NCEC is currently working on a New Democracy Foundation that could raise money for its politIcal activities. it is doubtful that bilateral and multilateral donors will fund such initiative. The foundations too may have a problem. The Ford Foundation, for example, refused to fund Mwangaza (the very first alliance between politicians and Jeaders In organised civil society, registered as a trust)1 claiming that the initiative was politicaL Mwangaza was for a while funded by the Friederich Naumann Stiftung, the liberal democratIc foundation from Germany.

B: The Donors of the NCA/NCEC The NCA/NCEC has been funded over time by the Dutch Embassy. 1-IIVOS (a non- governmental donor), the Westminster Foundation (UK) and the international Centre for Human Rights and Democratic Development (Canada), the SwedIsh SIda and USA1D. The contribution of the Dutch Embassy went into the convening of the first plenary in April 1997 and was paid to the National Convention Planning Committee, the forerunner of the NCEC. The Swedish Sida and USAID contributed the convening of the third plenary of the NCA while the Westminster Foundation paid for Institutional suppott of the NCA/NCEC secretariat for the year 1 997/98. It is common knowledge that the British High Commissioner, then Mr. Simon Hemans, campaigned furIously against the grant to the NCA/NCEC. The Dutch Embassy. the Swedish Stda and USAID refused to fund the fourth plenary that took place in February 1998. Initially there has been a commitment that the donors (DANIDA, the Dutch Embassy, Sida, USAID and FIIVOS) would fund the plenary.

It has since become clear that the reason behind the USAID refusal was that the US had made the decision to strike Iraq on February 24, 1998 and the fourth plenary of the NCA/NCEC, which was going to upset the Moi-KANU regime, was not worth investing in. The US needed the facilities in Mombasaand they were not ready to leopardIse their use by supporting an initiative that was challenging the election of President Mel and his party into power.

The NCA!NCEC, therefore, has two supportive donors in HIVOS and the International Centre for Human Rights and Democratic Development, both non-governmental donors. Of the two, HIVOS bears the main financial responsibIlIty by giving the NCA/ NCEC its institutional and programmatic support. The NCA/NCEC would do with more funds to implement its unfinished business. Part of this unfinished business is the setting up of grass root structures that vould give it a popular base and a stronger movement. The NCA/NCEC is hoping that such funding will come through.

The issue of course here now is whether the donors will fund the establishment of such a movement whose political statement is pretty obvious. The donors are facing the same question in Zimbabwe where the National Constitutional Assembly (NCA) remains a movement that has politicaL expression through the opposItion political parties, the main support coming from the Movement for Democratic Change (MDC). The leadership of the MDC was initially the leadership of the NCA. Upon the for of the MDC the leadership resigned from the NCA. More opposition political 255 may support NCA and if the NCA becomes a key political player, it will definitely field candidates through the political parties posirlga threat to ZANU-PF. Such a movement could bring about the elusive unity among opposition political parties. It is interesting that although the NCA/NCEC thought through such a process since 1998, and it was part of its crucial blue print, it is yet to implement it The intense consultations between the Kenyan and the Zimbabwean initiatives may explain these parallels.

Ill: Conclusion: Questions the Donors Have to Address Will the donors accept that the civil society is a nursery for clean politics and alternative political leadership and fund projects geared to achieving these goals? From the experience of NCA/NCEC, it seems clear that some donors would consider funding such Initiatives, others wouJd not It may be that evidence of such clean politics and alternative political leadership will have to be clear. Donors do not back alternative political leadership unless it exists and has the potential to win. Nurturing such a leadership is always problematic because of the ruling groups who can threaten the donors' economic, military, social, cultural and political interests. If donors serousIy supported the liberal democratic principle of checks and balances they would have no problem giving such support. The problem is that donors pay Iipservice to the discourses they support and respect in their own countries namely the ideals of liberal democracy, and for a few others, social democracy. For most donors democracy has the narrow meaning of holding periodic elections that are neither free nor fair. The accusations of paternalism and rnaterna!ism, double-standards, hypocrisy and perfidy on the part of donors has to be addressed and taken seriously.

Where do the World Bank, IMF and EU fit in all this? All these institutions are very powerful multilateral donors that seem to put economic and strategic interests above all else.. They are still to be convinced (whatever they say now is sheer rhetQric) that these economic and strategic reforms have to interact with political reforms. Their focus on the governments of the day is the cause of instability in many countries MultIlateral donors have to wake up to the reality that they have the entire people of the world to contend with. The movement for survival for all people of the world is not going to be stopped by reinforcing the dictatorship of the international capital and its international bourgeoisie. Multilateral donors will have to address social democracy as the only viable political system in the here and now, focus on the issues of social justice, realise that the state 1s obligations cannot be wished away In this endeavour and stop worshipping at the feet of free market. The world does not need other wars or other revolutions to realise that for a start state welfarism has to be the beginning of any stability in the world. It is, however, up to the people of the world to address the limitations of social democracy.

Structures of funding political movements are now clear and ought to be considered. e is the NCA/NCEC example. Various sectors of civil society find a political voice initiative that is an alliance between politicians and civil Society. The various rs of civil society are the mainstay of that voice and need support to reinforce it. hiiTh 256 The Zimbabwean experience is clearly one where a political party or political parties have support from the movement of civil society. The movement itself is not an appendage of the political parties. The movement, however, has sufficient popular power to direct the politics of the political parties. Political parties therefore, cease to be institutions that focus on the capture of political power at the expense of national issues. This format may be one way of ending the politics of divIde and rule invokIng, as they do divisions based on gender, ethnicity, generation, religIon, race, clans, linguistic considerations, class and regions. What will be the view of the donors to local funding? It seems various sectors of civil society have taken up this issue seriously. Governments are being asked to consider the change of tax laws so that the private sector and Individuals can seek tax breaks and support the civil society. There are also initiatives that are invoking the African values of philathropy and humanity as the basis of local funding. The issue at hand is political.

Will such initiatives compliment and reflect the interests of foreign funding, or will they pose a challenge to its interests? As long as the various sectors of civil society do not discuss the reasons for foreign aid, they will not be able to evaluate and assess the consequences of local funding to the status quo. Mutahi has argued persuasively on the need for connectivity in the projects of various sectors of civil society. A lot of what he recommends, for example, identifying the livelihoods of communities and individuals as entry-points for this connectivity is being done in East Africa among the democracy and governance groups. In the case of Kenya, community-based orgartisatioris have been identified. They of course lack resources and look upon the older organisations, namely registered NOOS, to assist them to access funds. There is of course the danger that such initiatives can be captured by the middle class groups that exist, and they can lose their autonomy. The structures that guarantee partnership based on equality and that respect the autohomy of these groups have been set up. Upon receipt of the resources, this connectivity will be achieved. The developments, positive as they have been on the arenas of freedom, have given impetus to all these formations. They are the guarantee of a stable democracy If they are not nipped in the bud. Again the foreign donors need to address these developments. They either address the liberal democracy at its entirety (and for us there are transformative Ingredients in liberal democracy when applied in our countries) or they continue lip service to it and risk total exposure.

The donors are expected to invest in transformative processes and projects. It seems that there is no common denominator on what this transformation in East Africa entails. One of the reasons of course is that the interests of the donors are not homogeneous. Nor do they ascribe to the same content of democracy. That perhaps explains why the Nordic countries and the Netherlands are the donors at whose doors the democracy and governance groups knock first. It seems donors from these countries have not clearly understood the leverage they have in East Africa. It may be they too face the oppression of the multilateral donors! Although the donors are rarely asked what their concrete interests are in supporting prolects it may be a gr idea to start such a dialogue with the civil society. You cannot get the A 257 mission in Nairobi to tell you how much they pay for the use of facthtfes at Mtongwe in Mombasa. Although that evidence Is available here via Washington, owning up to the military interests of the US in Kenya may get the facilitIes more legitimacy and more support. Again what is transparency and openness that liberal democracy demands? What is the freedom of information? Iven if . Kenya did not dIsclose this evidence should not the developed democracies disclose such information in the name of freedom of information whIch they are committed to?

Endntes Julie Hearn, Political Aid. OemocratisatIon. and Civil SQcjety in Uganda in the 199s (Kampala- Centre for Basic Research, Working Paper Nc. 53, 999).

Mutahi Ngunyl Civil Society and the ChaLlenge of Multiple- Tansitions in Kenya. Chapter 7 in eds. Julius Nyangoro, Clvi! Society and Demçratic Uelopmenl in Africa Pers .peeftes from Eatern and_Southern Africa (Harare: Mwengc', T999).

3 Mutunga. Constitution -Makinfrom the Middle and Civil Society and TtansLtIon POliTICS in Kena.J 992-1997 (Nairobi Harare: SareatfMwengo, 1999).

4. These indi4duaI MPs and politicians are among the most positive and progressive in the country. They are politicians who hi'e gone beyond the rhetoric of criticism of the Mol- KANU regime. They are looking for definite blue prints on how to put Kenya In a truly democratic rra)ectory. They constantly discuss how they are better rulers than the current ones and how they will turn the country round. The outstanding politicians in this group are Professor Anyang' Nyongo, James Orengo, Augustine KathaligU, Moses Muhia, George Kapten and Professor Wanganl Maathai.

S. op. cit. note 2

6, Qnote2

7. Ibtdpage 135

258 Representation on the LA Assembly is an Opportunity to Build a National Consensus MUGAMBI KIAI

We are not going to the EAC assembly as opposition parties but as representatives of our countrv..the decision that the opposition should get one seat out of the nine is unacceptable. Shaibu Akwilonibwe

Essentially, neutral observers of East AfrIcan politics are agreed on the fact that there is a world of difference between good politkal theory and the obtaining politIcal practice in the region, some may argue that this gap between political theory and practice exists everywhere In the world but it Is not altogether inaccurate to suggest that it is more apparent in our countries than in the more modern democratic republics.

This is the reason why there is more than a good measure of cautIous alarm spreading with regard to the methodology that will be employed to determine who will represent the individual East African nations in the East African Legislative Assembly.

In Tanzania, the politIcaL opposition has reportedly threatened to go to court to halt the selection of regional parliamentarians from the country because it is of the view that "no concrete measures have been taken to ensure fair representation on the regional legislative assembly. Apparently, the TanzanIan political opposition fears that the ruling Chama cha Mapinduzi will elect to take up eight out of the nine seats for each of the three countries.

The same fears can be expressed for Kenya where the ruling KANU party will most likely impose its numerical advantage in Parliament to edge out any significant representation of the political opposItion parties on East African Legislative Assembly. In Uganda, although there are no political opposition parties there is still an under- represented polItical opposition, which will naturally claim to be marginalised when it comes to the election of representatives on the regional legislature. is the East African political opposition unustifiabIy crying wolf? Hardly, and for at least two reasons. Firstly, the current prevailing political scenario is one of mutual suspicion and distrust between the incumbent and the opposition. This means that in their politIcal mathematical equations they are out to claim the biggest stakes in every area, even if this goes agaInst the national interest. In this case, it will mean that political competitors are marginalised.

Secondly, and more dangerously, because the incumbents in each East African count have parliamentary malorities or support of over one-half, they can go it alone

259 electIng representatives on the regional legislative assembly. This is given that the treaty for the establishment of the East African Community allows each legislative assembly to engage its own methodology in such elections and parliamentary majorities then will be used to unilaterally settle the issue.

And here is where the greatest mischief lies. The East African Regional Assembly will then become another tool for reward and punishment, an arena for political patronage where it will be who you know rather than what and how well you know the subject that determines who gets on board. Naturally, mediocrity rather than merit will rule. -

In this situation, political relects and retirees will easily be recycled and in the process we could easily end up with a regional Jegislative assembly packed with political has- beens consisting of the who used to be who in East Africa and beconing a political old peoples home. This is an alarming prospect.

It is in this context that the initiative of the Tanzanian political opposition can be viewed. In Uganda, the Development Network of Indigenous Voluntary AssoJation (DENIVA) in collaboration with the Friedrich Ebert Foundation have launched a call for view from the public and civil society on what criteria and process should be employed when electing the regional parliamentarian.

In an advertisement appearing in the last issue of the East Africcm, DENIVA listed seven key areas where views could be entered in order to guide or persuade the national legislature on how best to elect he regional legislative representatives.

In Kenya. the Kenyan chapter of the East African Law Society (EASL), in similar collaboration with the Friedrich Ebert foundation, hosted a workshop in Nairobi on April 5, 2001 to discuss how best to carry on the process of electing a regional parliamentarian in Kenya. Those invited included office bearers of political parties, representatives from the business community and also from non-governmental organizations and religious groups.

The resulting forum, though not attended by all invited, emerged with some exciting ideas on what criteria to use when scrutinizing candidates for the nine positions on the regional assembly to make them truly representative of the varying interests in the country.

Yet again, however, the constant headache was on how to convince the various political parties that the vacant seats in the East African Legislative Assembly, far from being ordinary political carrion, are not iust a matter for the sharing of political spoils. Rather, they represent a good opportunity to create a national consensus through a process that should involve and represent the greatest numbers possible and also produce the best women and men for the !ob.

Anyone who has studied political consensus building in the region knows that it does t exist in our real rea!pdlltik where it is always the winner-take-all mentality that is. Indeed, the only consensus building currently happening is constantly pegged

260 to narrow, parochial, partIsan and sectarian interests hinging on indivIdual, ethnic or party supremacy.

Clearlc a broader and more inclusive and representative methodology has to be found to carry forward the national interest especially with regard to consensus building. And this is why those outside the political arena need to unite and forge new forceful alliances to put pressure on those who work within the rubric of political parties or political movements in order to strengthen our democratic outputs.

or the moment however, we are saddled with having to lobby and make recommendations on how to ensure that democratic processes such as the election of the regional parflamentarian are not abused and trMaUsed. it must be added that it is not enough that it is only the political opposition that are included in electing members to the regional assembly. Rather, minimum standards need to be set and implemented to guarantee the calibre of these representatives because it is not iust ruling parties that exercise favoritism., nepotism and tribalism.

There is a Kiswahili saying that intoto wa nyoka ni nyoka (the chtld of a snake is always a snake). The ruling parties in Kenya and Tanzania and the movement in Uganda are the mothers and fathers of afl the politcs in their respectwe countries. Hence, it would not be too farfetched or simplistic to hazard that their political offspring, who are now in political opposition, bear the same or identical political genes.

Thus, there is a great need to inItiate programmes that are designed to include representatives of oc-ganisa tioris and concerns that are not overtly political but represent all areas of national interest, in order to cultivate a broad based political consensus that will include a wider political gene pooL

261 4lIli14 The Human Rights Situation in Kenya WILLY MUTUNGA

1: Background The Declaration in Vienna in 1993 that human rights are interdependent, indivisible, integrated and merged was perhaps a watershed of forty-five years debate in the international human rights movement on the history, categorisation, prioritisation and the politics of human rights. The Declaration merged economic, social, cultural, political and civil rights After the end of the cold war and the ideological content on human rights dfscourse such a declaration was expected. The declaration in Vienna reflected the world that was now Integrated under new buzz words: new World Order, giobalisation, free market, recolonisation and the death of communism.

Globaitsation is the burning concept of our epoch. Whether we compare It to colonialism or imperialism and predict a new cycle of liberatIon struggles as Professor William Ochieng. the Permanent Secretary, Office of the President, did in a think- piece on Sunday Nation November 14, 1999 (l wonder whether the KANU regime is now thinking of mobilising Kenyans against globalisation thus distancing itself from the failures of its rule!), an analysis of the human rIghts situation in any country after the Vienna declaration must start with globalisation. This analysis then applied to the North-South divide, and the continental and regional impact of globalisation ultimately crafts a national picture.

There exIsts a powerful argument that the international economic system that we call globalition is the root cause of human rIghts violations. In liberal democracy we champion free market and hold the freedom of the individual to be important. It is the political and civil freedoms of the individual that have been so crucial in mobilising Kenyaris for independence and self-determInation. It is the agitation for these rights that have been crucial in fighting the one-party dictatorship and. the struggle for multipartism. Kenyans regard as important the struggle for political and civil rights in our democratisation process. The state has been the main target of this agitation.

The limitations of the free market were exposed by the ideologues of socialism and communism and accepted by the systems of the West after the I St World War and the Russian Revolution. What came to be called state intervention in the economy (the economic justification of it is traced to Professor Keynes) was a life-nerve for the market economies that faced the threat of revolution. The history of social democracy is a major reflection of politics of survival of market economies. State welfarisrn is = what the Vienna declaration of 1993 reflects. For globalisation to survive it must take ocial democracy seriously. State welfarIsm has been experimented seriously in the ic countries and the Netherlands. This perhaps explains why the communists

262 saw the social democrats as traItors and Reagan and his ilk saw social democracy as the greatest danger to unmitigated capitalism, not communism. If we are to search for a paradigm that will guarantee a beginning of a world free of human rights violations, we must start with the experiments in the Nordic countries and the Netherlands. And that Is not all, we must irnerogate the limitations of social deniocrac and what may rescue the limitations as the only way forward If this is not done then we will simply pay lip service to economic, social and cultural rights.

For Kenya the clarion call "Freedom and Survival" captures the merger of all rights. It is a reflection of the Vienna declaration at the national level. It is a legitimate demand that the people of the world are making to the high priests of globailsation. It is the path on which the international human rIghts movement must focus and follow. Today's talk perhaps answers the question of where Kenya is on this path. The answer is also intertwined with the profile of Kenya Human Rights Corn missIon and indeed the profiles of other human rights initiatives

Kenya Human Rights Commission was registered on January 20, 1994 after operating in the country since 1992- Formed in 1990 in the LiS, its initial work was to break the back of a Washington Jthby woking for the Moi-J(ANU regime. The Commission reinforced the international human rights movement and other external pressure that forced the regime to decree multipartisrn. The Commission has kept these international links for its protection and for the purposes of international solidarity in human rights work. One of the crucial results to come out of this collaboration is the realization that human rIghts violations are not confined to the south.

Once based in Kenya, the Commission focused on the monitoring and documentation of the violations of political and civil rights in Kenya. This was principally done by quarterly reports. Occasional reports focused on incidents of massive violations of human rights. Since January 1999 the Commission has widened its scope of monitoring and documentation of human rights violatIons to encompass all rIghts. The idea here is to give the Vienna declaration a concrete application. Our quarterly reports now reflect the two faces of human rights violations. The face of resistance still, remaIns weak in the reports. The monitoring and documentation of economic, social and cu[tural rights is being undertaken without jeopardizing the Commission's distinctive niche, the monitoring and documenting the violations of political and civil rights. Our quarterly reports and three occasional reports (the Gender Policy Paper: Dying to be Free, the Mwea Farmers' Struggle for Rights and the Jorgoflen People Revisited) reflect these concerns.

The Commission is nowa member NGO and is committed to a creation of a human rights movement in Kenya. The core of the membership will be from CBOs that are based and are part of what we call human rights communities. By the end of WOO we will have these associate members in all provinces. We do not create the CBOs. We identify those that exist and have a track record in human rights that reflect the visi4 and mission of the Commission. The Commission's view is that CBOs and or' formations at the communit level in the entire country are the fundamentaL p' 263 '- the struggle for the respect of human rights in Kenya. The organisations are also crucial If the middle class human rights organisations are to have a major impact in the economic, social, culturaL and political changes in the country.

II: The Two Faces of the Human Rights Situation in Kenya In Kenya, as indeed in most African and Third World countries, the face of human rights violations one sees is one of unmitigated human rights violations. That the whole gamut of human rights is violated is no longer an issue of debate. what lacks in the debate about human rights violations is an analytical and critical discussion of the root causes of these violations. These are analyses that focus on the role of the state in the vioIaions. The entire private arena, be it the market or the family, is left out of these discussions. Where the root causes are discussed and clearly identified, invariably the solutions tend to reflect a mix-up of falsehoods, half-truths and truths.

The other face of violations of human rights that is rarely seen and rarely glorified is the growing culture of resistance to human rights violations. lew human rigits organIsatioris monitor and document this resistance. Very few of these organisations glorify this culture of resistance to human rights violations. Indeed, the Kenya Human Rights Commission has undertaken this task from the margins since January 1 999. Yet it is this resistance culture that will guarantee the respect for human rights. It is this resistance culture that human rights organisations ought to focus on. This crucial focus, however, does not let the state off the hook.

It is these two faces of the human rights discourse that can give this issue of human rights violations a holistic picture. it is also possible to argue that there is a conceptualisation of the discourse of human rights and its violations that reflects these two faces.

A: The Face of Violations The Kenyan state has never denied that there are violations of human rights in Kenya. What it has done is to issue a series of rationalisations for the violations: the issue of lack of resources, actions by agents of the state in violation of laid down authority, lndiidual citizens taking the law Into their own hands, the global situation and others ad nauseam.

So what is this picture?

Not much work has been done in exposing human rights violations resulting from Kenya's national debt, the impact of SAPS, and the massive drainage of resources from the country by national and international individuals and institutions. Comprehensive work is yet to be done in connecting corruption with the violations of the whole gamut of human rights. The role of international trading and financIal 16Lnstitutions in human rights violations is yet to be comprehensively monitored and mented. Violations of political and civil rights have been monitored and

264 documented by national and international human rights organisations. What are these violations?

Lack or land and food; the persistence of poverty and hirner; the denial of the rights to education, dean water and clean environn1ent the denial of the right to health, the right to work, the right to clothing; the denial of the freedoms of assembly, movement, association., expression, information and press; the denial of freedom of worship; the lack of free and fair elections: the Jack of freedom of conscience and academic freedom.

There are violations in the social and cultural arena as well. Here one notes the violations of the rights of women, children and people with disabilities. Here also one notes the struggles by minorities for their cultural entities and values as well as the general question of citizenship. The Somali nationality in Kenya has been denied citizenship fora long time. Since independence the citizenship rights of Asiaii-Afrfcans, Arabs and Kenyan Europeans have been called to question. ethnic communities, notably the Agikuyu, have faced challenges of citizenship in other areas of the couiitry. The so-called ethnic clashes of 991-2, 1997 and 1998 reflect the gravity bi this question. The minority community of hunters and gatherers, the Ogiek, struggles to survive from extinction because its livelihood in the various forests is violated on a daily basis. The cancer of corruption is a denial of the whole gamut of human rights. These violations have been documented by national and international human rights groups. They have been documented by governmental organisations such as the Standing Committee for 1-lutnan Rights and the various Commissions of Inquiry. Kenya's national debt is staggering and the impact of SAPs has been analysed it is also part of the Kenyan discourse now that there is recolonisation, a more serious degree of violations than during the colonial period. One can go on and on.

Institutions have lost their independence and what are national banks or national corporations are institutions where the national wealth is stolen and plundered. Whatever infrastructure one talks of, economic, intellectual, political and others are in danger of extinction. The debate on whether Kenya is or is not a failed state is part of a reflection of the massive violations of human rights.

Security as a fundamental and basic right for survival and existence is constantly threatened by insecurity caused either by bandits, criminals, the police, private armies and a state that is unable to guarantee the right to property and life. The so-called ethnic dashes, which have been politically motivated, are proof of the fact that the state is unable to protect the lives of all citizens. With all the machinery of violence at its disposa', one wonders why the state is unable to deal decisively with acts of banditry, cattle rustling, drugs and other crimes.

The lace of Resistance History records that resistance to human rights violations can be traced to pre-colonial times. What is discussed here are the developments of the current decade, the deca of multipartisni Through their struggles Kenyans rejected the one-party clictat

265

and its violations of human rights. Though weak, parliament has done a good job in the agitation for the protection of rights. The opposition political parties have undertaken the campaign against corruption with some degree of success, in particular in the arena of exposure.

The civil society, oppressed, intimidated and threatened with the culture of fear during the one-party dictatorship is now rather vibrant and growing in strength, resisting any oppression encountered in the implementation of its projects. The organised sectors of civil society have been crucial players in the struggle for human rights, for examp1e the professionals and NGOs, and religious civIl society.

One of the crucial political freedoms that have been constantly violated in thiscountry is the right to organise. The organisationsof the people are still struggling for a space to operate amidst oppressive colonial and neocolonial laws. However, this denial has not stoppedthe community-based organisation s, the farmers organisations and the organisations of pastoralists from struggling for justice and democracy in a peaceful and non-violent manner. The peaceful and non-violent resistance to human rights violations of this unorganised sector of civIl society is yet to be monitored, documented and glorified.

Kenyans, mostly those lIving in towns, rarely look behind their shoulders. Although the culture of fear still pervades the rural areas, we have witnessed strikes by teachers, doctors, nurses, rice farmers, tea and coffee farmers, wheat farmers and there will be many more. Students at universities have peacefully and nonvIolently resisted the dictatorships of the uriversity administrations (the state will tell you that, whenever violent, the students are organised by the pro- reform groups as if students are intellectually children!). Students in schools, colleges and polytechnics have also resisted the denial of their rights. The youth and the women's movements though embryonic are in ascendancy. People with disabilities are also agitating for their rights.

If one wanted to reflect on the degree of the resistance to the denial of the freedom of the press, one needs to study the struggle by the cartoonists for their freedom of expression and the freedom of press. Their history in this decade has been one of innovation and consistent struggle for more space to express themselves. Now cartoonists are the greatest expression of the struggle for a free press in Kenya.

One can also state that the enjoyment of political and civil rights and freedoms has enabled Kenyans to discuss economic, social and cultural issues. One of the great examples of this argument is the struggle by the rice farmers in Mwea. As long as their freedoms of speech, association, movement and assembly were denied, the farmers lacked the right to organize against their exploitation and virtual slavery at E the hands of the National Irrigation Soard and its national and international financial institutions. For the ordinary citizen (Mwananchi/Mukthihoi) in Kenya the categorisations Joifrights. do not exist, because the right to survive and the right to decent livelihood o mpasses all rights. In the struggle to survive the Mwananchi/MuJa!ahoi prioritizes ts and demands their fulfillment.

266 Ill: In Lieu of Conclusion: The Role of the International Community The burning questions the world over are security and the basic needs of all people. Survival for our countries, the broader region, the continent and the entire world is what like-minded people in human rights movements ought to discuss. That should be the life-nerve of the human rights movement. The international community is as much a part of this project as Kenyans are.

The project of the human rights movement in Kenya, reflecting as it will what has been discussed here, requIres material, intellectual and moral support from the international community. International solidarity has never been more crucial than now when we cannot validly argue that human rights violations are confined to the South.

There has been undue focus on human rights initiatives of the "organisedt' sectors of clvii society, the professionals, the religious organisations and NGOs. The human rights initiatives of the communities have been relegated to the arena of "development" and development NGOS. The resistance struggles of these communities for their rigits and justice have to be encouraged and supported. In my view the cornerstone of stable democracy in Kenya will depend on how we respond to these struggles by the communities. The donors will have to identify these initiatives and support them.

The projects of constitution-making, civic education, clean politics, alternative political leadership and the struggle against corruption are projects on human rights. The international community has been addressing these projects and it has to continue doing so. The strategy of integrating economic, social and cultural reforms with political reforms still remains the only viable strategy for "freedom and survivaL"

On the issue of sovereignty, nobody will argue that the international community has the right to violate the sovereignty of other nations. However, it is a fact that the international community has a moral duty to speak up when there are human rights violations. This moral duty emanates from international covenants on human rights that bind the international community to speak out and condemn human rights violations. if Kenya has not exercised that moral duty to condemn violations in the West, that in itself is no reason for waving the flag of sovereignty when the international community raises issues of human rights violations in Kenya.

Let us be very open about the issues of economic and military interests that have restraining influences when it comes to the issues of human rights violations. The international human rights movement is talking about the ethical behaviour of multinational corporations. These corporations are being asked not to violate human rIghts. Have the missions from the West addressed this issue? Can there be structures for dialogue on such an issue? if the Kenya Human Rights Commission has complaints against Del Monte, do the Italian and American missions have structures for taking such complaints? Perhaps the World Bank has shown the way by setting liaison offices to dialogue tile concerns of human rights NGOs and indeed all NGOs. I thank Presidency and, indeed, all of you for the Invitation and the opportunity yo 267 given me to discuss the human rights situation in Kenya.

These notes were prepared for a discussion with the political counselors of the EU missions in Nairobi at the Embassy of Finland, Nairobi at 10.30arn on November 16, 1999.

LL 1 268 3. Interna,tional Commentary on African Affairs A Separate Nation for Black African Sudan MAKAU WA MUTUA

The government of Sudan blatantly practices slavery and commits genocide, such demonic atrocities that any state that commits or condones them should forfeit its right to participate in international affairs.

Civilization can be vindicated only with the expulsion of Sudan from the United Nations and the Organization of African Unity, and the creation of an international criminal tribunal to prosecute President Ornar Bashir and the senior officials of his fundamentalist Islamic regime. But the real solution is an independent state in southern Sudan, free from the clutches of Khartoum.

Sudan, Africa's largest country, is a dysfunctional state that was thoughtlessly car'jed out by the imperial British durIng the scramble for Africa. The BrItish forcibly amalgamated the Arabic and Islamic north with the African south, home of the Dinka, Nc.tba, and the Nuer peoples.

Since independence in 1 956, state, political and military power has been exclusively held by the Arabic north 1 with Khartoum as the econoniic and commercial center. The north is and and barren but the black African south boasts the most arable land and vast oil deposits. The north and the south are like two separate countries and realities.

Protesting their complete political exclusIon, military repression, and economic exploitation, including ensravement, by successive Arab governments in Khartoum, black Africans in the south started an insurrection against the Sudanese state soon after independence. Since 1983, that insurrection has turned into one of the deadliest civil wars In history. Africans in the south and central parts of the country, led by the Sudan People's Liberation Army, have since sought either self-autonomy in a united but secular Sudan or complete separation and an independent black African-ruled state.

In a bid to defeat the army and wipe out the black African population in the south, the Bashir government has declared a holy Islamic war, laid waste to the region1 and virtually decimated its people. -

The list of atrocities committed by the Sudanese government in the south is long and bone chilling. Government attacks and the war have claimed more than two million black African lives In this country of 3 5 miflion people.

Most of those killed are women, children, and the infirm from the Dinka, Nuba, Nuer, oredsr non-Moslem African peoples. Millions have been internally displaced. d of thousands have fled into exile. Those left behind are either killed by bombs and bullets. Life has stopped in the south. Death is the lot of black aL 270 Africans. The government hopes to virtually destroy the African, non-Moslem populatIon of the south so that it can take over the region GenocIde is official state policy.

To underline Its assault on non-Moslems. the Sudanese government has established, supported, and condoned a system of slavery against the black African population that remains in the central and southern parts of the country. Government-trained and backed militia from the Arabized nOrth and west of the country have for at least 15 years been raiding Dinka villages and abducting women and children for use or sale as slaves.

Directed exclusively at Dinka civilians, the militias are transported by military trains and operate directly with government troops. Once enslaved black Africans become the property of their Arab Moslem abductors, who beat, torture, rape, sell, and even kill them. Many captives are stripped of their identities, including names, and forcibly converted to IslarrL

Several steps must be taken to end slavery and genocide in Sudan. The US Sudan Peace Act passed by Congress last week is a step in the right direction. But it is a slap on the wrist and does, not go far enough. The international community needs to completely isolate the Bashir regime. His evil regime must be ousted from the UN and the Organization of African Unity and economic and military sanctions imposed on it. Arab and Islamic states must - as should all states - denounce the enslavement of AfrIcan non-Moslems and sever diplomatic relations with Khartoum. All countries must deny visas to Bashir and his top aides and freeze all their assets abroad. UN Secretary General Kofi Annan should tackle slavery and genocide In Sudan with the same zest that he has used to mobilize support for the fight against AIDS. He should lead a crusade to impanel an ad hoc international criminal tribunal to try Bashr and his Lieutenants for slavery and genocide. if universal jurisdictIon for the most heinous international crimes is going to mean anything; then the promise of Nuremberg must be fulfilLed. That promise caught up with some Nazi war criminals and it has a date with Slobodan Milesovic.

Ultimately, we must come to terms with Sudanese hIstory. That history shows that the Arab and Islamic north has never sought a secular, equal, and peaceful coexistence with the black African south. In many other countrIes, Arab Moslems live in peace with their black African kin. Since such tolerance appears to be impossible in Sudan1 the international community must press for the only viable solution; a separate and independent black African republic for the south.

271 Zaire Doesn't Deserve That Aid MAKAU WA. MUTUA

In mid May. Zairean security forces stormed the campus of the University of LubumbashI. According to several recent reports, these soldiers massacred at least 300 unarmed students. One member of the government's Garde Civile who was at the campus that night says that he counted 347 bodies as they were being evacuated from the unIversity grounds by government agents Some of the victims were reportedly buried in a niass grave near the local airport.

Several days later1 Assistant Secretary of State for Africa Herman Cohen arrived in Zaire. Without even mentioning the violence at Lubumbashi, he told reporters that the United States would direct its future foreign aid towards enierging democracies such as Eastern Europe. Zaire and some other African countries:

Cohen's ill-timed and inappropriate support for-the Mobutu government is sadly characteristic of U.S. policy towards Zaire for the past 25 years. Equating pronouncements of reform in Zaire with sweeping changes in Eastern Europe was particularly troubling 1 coming as it did in the immediate aftermath of the Lubumbashi killings. Regrettably, Cohen's noisy diplomacy is only the most recent example of the administration's failure to exert needed pressure on PresIdent Mobutu. In 1984, barely a year after Zafrian security forces brutally attacked several opposition politicians following their meetIng with visiting U.S. congressmen, Assistant Secretary of State Elliott Abrams told a congressional committee that "human rights conditions in Zaire had improved over the last 20 years." Dismissing these and other acts of violence by Zaire's security forces, Abrams implored congres to provide more aid to the government of Zaire.

Several months later, Mobutu was treated as an honored guest by President Reagan. Reagan gave Mobutu a "warm welcome" and praised him as "a faIthful friend for some 20 years." Responding to crIticism of the administration's negative handling of the human rights issue in Zaire, Assistant Secretary of State Chester Crocker asserted that "it was wrong to characterise Zaire as a brutal police state." Rather, he suggested that "abuses that do occur tend to be committed at the lowest level by Individuals on their own, wIthout sufficient training or material support." In 1986. Reagan renewed his unqualified praise for Mobutu, calling him a "voice of good sense and goodwill,"

This misguided U.S. approach to Zaire has continued during the Bush administration's first 18 months in office. Mobutu was the first African leader received by President Bush at the White House in june 1989. The administration has requested that congress Zaire with $56 million in military and economic aid for FY 1991, citing Zaire's k Western policies. What this policy ignores is a prolonged and systematic pattern of institutionalised abuses of human rights in Zaire. Since Mobutu came to power in 1 965, Zaire's security forces have continued to routinely harass, arrest, detain and abuse perceived political opponents. Thousands of Zaireans have been tortured, subjected to cruel treatment and prolonged incommunicado detention, actIons that have led to a total breakdown of the rule of law. official bodies created to protect the rights of Zairean cItizens - specifically, the courts and a government human rights ministry called the Department of Citizens Rights and Liberties - have failed to carry out their mission. The judiciary has been plagued by interference from Zaire's sole political party, the movement Populatre de Ia Revofuton, and from the executive branch. Despite annual pronouncements of reforms for more than a decade, Zaire's judiciary has not punished the security forces for arbitrary arrests and illegal detentions.

The DCRL, which was formed in 1986 to promote human rights, lacks the credibility, authority and political will to redress abuses. It has not resolved a single hdman rights case since its creation. Instead, it has been used cynically by the government to defend the government's human rights record before international tribunals such as the United Nations.

In April, Mpbuw arrnowiced his intention to abolish the one-party state arid to sanctcon a three-party ixrlitkal system. But Mobutu dearly asserted that he would remain as chief of state and as "the ultimate recourse" for future governments of Zaire. He also emphasised that he would remain above all state organs even if a multi-party government were allowed. Since the announcement. Mobutu has failed to take any steps to reform the security forces, which are the main perpetrators of human rights abuses.

Soon, the U.S.Senate will decide whether the administration's request of $56 million in aid to Zaire should be granted. The Senate vote provides an excellent opportunity for the U.S. government to make it clear that in the post Cold War era, allies like Zaire must demonstrate concrete progress in human rights before further U.S. aid is forthcoming.

273 Ad International Networks, Lobbies and Partnerships in the 21st Century: Some Pitfalls An Acceptance Speech read by Dr. Willy Mutwiga for the MS—Price Award for Sustainable and Democratic Development, Nykoebing FaIster, Denmark

MS Secretary-General Martin Lidegaard, Ladies and Gentlemen, I bring you greetings from Kenya 1-luman Rights Commission, its staff, members, board of directors and the organisation we have given Jegal cover in Kenya, CLARION who you honoured and gave them the same award in 1995, the Kenyan civIl society and the Kenyan people generally. 1 use the word "people" guardedly, because 1 have constantly urged that we do not speak on behalf of people, that we do not take their voices when they elect us and that they have voices at all times and they should speak at all times. MS, however, has a following of the Kenyan people you are in partnershIp with and these are the ones I am referring to.

This is the first award ever given to the Kenya Human Rights Commission. I cannot express our joy at the Commission over this award. It reminds me of the feeling one gets when one reflects on the teachings of Jesus Christ in Matthew 13.57 when Jesus said that 'Prophets are honoured by everyone except the people of their hometown and their own family." Kenya Human Rights Commission may in some ways fit this divine teaching and the award may confirm it. Let me, however, tell you what our orgariisation has been doing since 1991.

Kenya Human Rights Commission was formed in the US in 1991 by five Kenyans who were in North America. Two of these Keny.ans were in exile. The Commission was formed to break the back of a Kenyan lobby in Washington that was doing a great public relations job for the ruling Moi-KANIJ regime. The agitation for rnulti-partism was gaining ground with the various sectors of civil society and opposItion politicians in Kenya taking the lead. The Commission joined those international lobbies that were pressurising the Mol- KANU regime to decree multi-partism and undertake an entire process of democratisatIon.

When the Kenyan Constitution was changed decreeing multi-partisni in December 1 991, the democratic space that opened gave rise to various forces in society. Civil society started its long journey of slow growth to vibrancy. 1992 was the year that Kenyans enjoyed more freedom than they had for decades: Org.anisations of women, youth, students, academics, people with disability, artisans, workers and others grew overnight; papers grew overnight; the people recovered their voIces and did not look = over their shoulders cartoonist sketched the president, an expression of freedom of speand press that would have earned them death or detention; the politics of started taking root and competitive politics gave hope of alternative leadership mocratisation of the society.. L 274 I am convinced that it is because of the freedom enjoyed by us in 1992 that the resistance culture that is reflected in all aspects of Kenyan society has grown in Leaps and bounds. This resistance culture is the second face of Kenya's demoeratisation. A culture that rejects authoritarianism, dictatorship, corruption and the deniaL of basic needs to all Kenyans It is this second face of dernocratisation that is reflected in the struggle for all rights, the struggle against poverty and the struggle against domination that international lobbies and networks need to Invest in. Yes, dictatorship, oppressIorn corruption and violation of all rights exIst in Kenya, but all these evIls are resisted and are in retreat. We are in a transition that reminds us of the wisdom that the darkest hour is before dawn."

It is because of the background I have described that enabled the Kenya Human Rights Commission to relocate to Kenya and ultimately get registered as an NCO on January 20, 1994. It is important to note that other human rights NGOS were registeFed including CLARION. The commission'sfirst task in Kenya was to establish its distinctive niche at the outset: monitor, document and publicise human rights violatior, The Commission prioritised this task by confining its work to political and civil rights. We relied on the constitution and the existing legal regime to agitate for respect of human rights., for the rule of law. We sought to protect the citizen in an environment of a feeble, dependent and compromised crucial sections of the judiciary. We were convinced that the so-called "bourgeois rights, which many citizens in the West take for granted were and still are fundamental to our struggle for democracy. This is a task we have done well.

During the last seven years we have also gone beyond monitoring, documentation and publtcising of human rights violations. We have also perfected advocacy when we felt our criticisms through our documents were Ignored. Peaceful civic action in the various forms of demonstrations, processions, vigils., prayers, strikes and others were undertaken. Our experiences also taught us that our project for democratisation was broader, and in that vein we formed the Citizens Coalition for Constitution Change (4Cs) in collaboration with the Law Society of Kenya and the International Commission of Jurists (Kenya Section). it is the 4C5 that gave birth to the National Convention Assembly and its executive arm, the National Convention Executive CouncIl (NCEC). it is through mass action and the agitation of the NCEC for reforms in Kenya since May 1997 that the struggle for the expanding of the democratic space in Kenya is continuing. The MCEC remains an alliance of various sectors of civil society and opposition political parties. The NCEC is definite'y the political wing of various civic society initiatives,

Since June 1998 the Commission has undergone reflection, reviewed its performance and roles and in particular reviewed the principle of non-partisanship in the civil society. The Commission is of the view that it cannot be neutral to justice, basic needs, human rights and the rule of law. It is on this basis that the Commission is A ready to team up with civic arid political voices that demand democratic change• Kenya. A lot of this review and refkction is now documented in a report of our r

275 in 1 998 and our Five Year Strategic Plan, 999-2003. The Commission is now a Membership NGO. We are committed to creating a permanent human rIghts culture in Kenya with a distinct human rights constituency. We are committed to a Kenyan society without human rights violations. We have broadened our horizon to monitor, document and publicise all human rights violations. We are convinced that the integration of all rights is a worthy prolect and the various international commitments culminating in the Vienna Declaration of 1 993 must be implemented if we are not to be accused of paying lip service to these ideals. Our vision for the ne>t five years goes beyond our borders. It is regional, continental and global. And it is this realisation that now brings me to the subject of international lobbies and networks, our partnership with you and some of the ideas I want to share with you on the sublect.

I have picked my topic from some of the ingredients of your 1999 theme "Dernocratisatiori and Civil Society." For international networks and lobbies to be successful in the coming century. I am convinced that certain truths and certaIn political realitIes need to be acknowledged. These truths and realities are fundamental to the success of all international partnerships and lobbies. They are pitfalls to these networks, lobbies and partnerships. I have read the position by MS on these truths and realities and 1 am happy to say that our partnership Is grounded on similar concerns, ideologies, visions and hopes and we can successfully build on these attributes. What are these truths and realities? I will only discuss a few oIthem.

The New World Order (Disorder) is a reality. People ask what is new about this world order? I think answers ought to be sought from the end of the socalled Cold War, the sc-called death of communism (I have my doubts if socialism or communism existed in Soviet Union and Eastern Europe), the supremacy of the American empire, the growing of a European empire with German leadership and oriental empires in the horIzon. What is undeniable is a world order that reflects powerful international financial, industrial, military and trading vested interests. These interests are reflected in economic and political systems of this New World Order. We view the consequences of this reality differently. We are divided by this reality. We must analyse and address this reality if our networks and lobbies are not just for promoting the global status quo. As we discuss critical issues of these lobbies and networks - trade, forcIng multinationals to be ethical and to respect human rights, peace, environmental issues, sovereign debts, poverty and others - we must agree that the New World Order needs mitigation. humanity in an otherwise inhuman systems. Such possibilities must be explored. What we must never lose sight of what is the difference between the symptoms and the cause of these critical issues. 2 * in Kenya we are divided on various grounds: racial, religious, ethnic, gender, generational, regional and class. The same grounds are used to divIde us at the global level. No international networks and lobbies can survive if they are not aware of these = divisions and consciously struggle against them. I can give one example that I am vare of. Citizens in the developed wdrld generally assume that all human problems the South and that notwithstanding your problems you are better off than the

276 rest of humanity out there. MS has roundly rejected this notion when it calls for the redistribution of world resources. it is a notion that is used nationally as well. In Kenya we are told we are an island In a region of turmoil. We are told to accept oppression, disease, hunger and denIal of human rights vIolations because we could be Somalia, Rwanda, Angola and the IDemocratic Republic of Congo. The citizens of the West must see the New WrId order oppressing the people of the world. The clarion call now should be "the People of the World Unite, You have Nothing to Lose but your Denial of Basic Needs:' I am always amazed at the democracy on the roads of the NordIc countries: there is room for everybody, trams, trains, cyclists 0 am told there are as many bicycles and pigs as there are people in Holland, a very important statistic on the issue of basic needs) and pedestrians. We should have this reflection of democracy everywhere.

* International lobbies, networks and partnerships of the global CiVil society still face the problems of relations with the nation states Professor Kibwana said here in 1995 and I will repeat the same truIsm again, that each society is responsible for itsown development, the role of outsiders is to assist. Nobody, however, should underestimate the impact of external pressure in the third world, for example. The Kenyan experience is that external pressure is crucial. International networks and lobbies have to continue being the motor of these pressures. The discourses of national sovereignty, international responsibility and the internattonalising and multiculturisirig of values are crucial tools in strengtheiing these networks. I think it is in this spirit MS has decided that "People-centred natIonal and international organisattons must support the weakest groups in their struggle for greater access to resources and in establishing their own self-help systems and organisations:"

* POLiTICS. InternatIonal networks, lobbies and partnerships must consolidate their polItics. There is bound to be negative politics that may affect these partnerships, nctvrks and lobbies. This issue is hardly discussed. 1 have heard many NGOs say that this is not an issue. Of course it Is and it has to reflect the vision, tasks and future of the networks, lobbies and partnerships. Civil socIety is slowly emerging as the limb of government (the press, part of the civil society has since liberal democracy acquired the fourth limb), a crucial centre of political power that can give rise to alternative politics. We laugh at the partIcipators of elective politics (in Kenya we say politicians tell the truth by accident; in South Africa they describe politicians as a bunch of bananas, all yellow and hanging out together but none too straight) and let them violate our politics. This is no longer acceptable.

Once again 1 thank you sincerely for the award. We will treasure it. We will treasure our networks, lobbies and partnerships with MS. Thank you very much I

277 4dlil4 African Renaissance MAKAU WA MUTLJA

After decades of unspeakable repression at the hands of authoritarian regimes. Africans stand at the threshold of a new epoch. Across the continent, millions are denianding freely elected legislatures, an independent judiciary and an accountable executive. This democratic renaissance cuts across linguistic lines and national borders from Nigeria to Kenya. from Mali to Zaire.

This upheaval, which began soon after the collapse of one-party states in Europe, also cuts across ideological tines This month, Angola, a battlefield of the cold war since 1974, agreed to a more open political process. This good news comes alter more than two decades of war, during which hundreds of thousands of people were killed or maimed.

Angola is but one sign of rebirth on the continent. Africa has not undergone such convulsions since independence. A number of governments are on the defensive against popular uprisings; several have collapsed. A few others, besieged by an impatient population, have agreed to introduce sweeping reforms. Several have held their first free elections since independence. Only a few, notably Sudan, Ethiopia and Kenya, have obstinately refused to heed the winds of change, even superficially.

Halting change is even coming to Zaire, a one-party state that has institutionalized human rights abuses since President Mobutu Sese Seko came into power in 1965. Unprecedented pressure by the people has forced the government to announce reforms and agree to contested elections. Despite the use of deadly force by government agents, Zairians are calling for Mr. Mobutu's removal and have made it clear that they will settle for nothing short of fundamental change.

In Mali, President Moussa Tracre's military Government was overthrown by army officers in March after 22 years in office. The coup leaders have named Soumana Sacko, an official with theU.N. Development Program, interim Prime Minister and he promised a democratically elected government.

In Zambia, President Kenneth Kaunda agreed in 1990 to end two decades of one- party rule. In elections this October, the smart money in Zambia is on the Movement for Multi-party Democracy, which calls for an accountable leadership, an independent judiciary and respect for human rights.

In Benin, the long time dictator Mathieu Kerekoou was ousted in March in the country's first free election since independence in 1960. In the Cape Verde islands, 16 years of ne-party rule ended last month when Carlos Veiga and his Movement for Democracy the country's first freely contested election. Last year President Fe]iv I-Ioiphouei-

278 Boigny of the Ivory Coast abandoned one-party rule following numerous demonstrations. He however won a contested election amid allegations of fraud.

SurprIsingly, one of the Governments that continues to resis the democratic trend is Kenya. Once regarded as a forward-looking success story, today Kenya is in a crisis. President Daniel arap Mol considered any talk of a contested election seditious. Yet, despite detaining and persecuting opposition voices-most notably Gitobu Jmanyara, the ailing editor of the outspoken Nairobi Law Monthly-the government has been unable to suppress demands for a more open political process

But free and competitive erections alone do not equal the rule of the law and respect for human rIghts, nor can they remove decades of institutionalized abuses. In Africa, the freedoms of association, assembly, speech and press have been denied and courts have been crippled entirely.

The current upsurge offers millions of Africans an opportunity to start afresh, politically, which in turn can help establish conditions necessary to tap the continent's 9st resources for sustained economic developments. It must be supported by the U.S.. although the verbal support the Bush administration has expressed for change is selective.

It has failed to place human rights at the top of its agenda with at least two of its key allies, Kenya and Zaire. In February, the Bush administration released $5mi!lEon in military aid in Kenya; after Its government gave refuge to several hundred U.S. trained LIbyan mercenaries. The Administration is also seeking more assistance for the Mobutu Covernment in Zaire despite Its failure to punIsh offIcials responsible for the massacre of as many as 350 students at the University of Lubumbashi last May.

During the cold war, U.S. support for a number of AfrIcan governments was designed to check a Soviet advance. This support was sustained despite large-scale violations of human rights. Today, the U.S can afford to take a more principled stan± Aid should be unconditioned on demonstrable progress in protecting human rights and the rule of law.

279 j A Can Kenya Be Saved From Its Government? MAKAU WA MUTUA

Kenya, once regarded as a beacon of hope in Africa, is on the verge of collapse. In the Fast two weeks several hundred people have been brutally massacred in the worst ethnic violence the East African nation has seen since independence in 1963. A civil war looms in one of Africa's most prosperous nations.

The violence is not surprising. When President Mol grudgingly legalized opposition parties last December., he reiterated a warning that multiparty politics would lead to ethnic violence and nationaJ disintegration. Since then, he has taken actions designed to convince Kenyaris and aid donors that political competition was a mistake. The worst action is government orchestration of ethnic killings in western Kenya and the Rift \'alley Province, Mr. Mci's home region.

Members of the KaIenin group, to which Mci belongs, have attacked Luo, Luhyia, Kikuyu, and Kisil tribes, presuming they support the Forum for the Restoration of Democracy (FORD), the main opposition party. Ostensibly, these dashes are spurred by dispute over land.

Incredibly, the government blames the opposition for fomenting violence. Recent'y, the usually moderate but powerful Roman Catholic bishops spoke for most Kenvans in a pastoral letter, saying the violence was due to Mel and his government. The bishops said the violence was 'part of a wider political strategy" by the government to keep Mci in power and forestall democratic reform.

The clergy notes that attacks are carried out by "well armed bandits and arsortists with orders "to Inflict injuries only on particular ethnic groups". The bishops sa.y the attackers are not local residents but are "transported to the scenes from outside the area". They. Anglican, and Presbyterian clergy reject the government's assertion that the violence results from the legalization, of opposition political parties.

The ethnic killings are a self-fulfilling prophecy for Mci, a dIctator who has ruled the one-party state with an iron hand since 1978, If the killings continue a civil war may occur, which Mci would use as a pretext for bannIng political parties. Only through such draconian measures can he avoid defeat in free erections. 2 Only decisive leadership by FORD can save the nation from catastrophe. But FORD has not seized the political initiative. Admittedly, the government makes it difficult to organize. Physical attacks, killings, and intimidation are rife; public-rally permits are = denied, and opposition partIes are not allowed to register locally.

1 1, Ford is its own worst enemy. The party leadership is headed by a group of older 'riven by power and personal glory. They are caught up In a bitter struggle to 280 decide who should lead FORD to the polls to replace tvloL The desire for power, along with opportunism, dwarfs discourse. Petty squabbling and narrow political ambitions paralyze the party. The focus on electIons, which may not hold., sidesteps the urgent business of effecting minimum constitutional and legal reforms needed for a democratic transition.

The leadership wrangle pits Kenneth Matiba, a former Mol cabinet minister, agaInst Oginga Odinga, a former vice president of FORD. Mr. Matiba,.who suffered a stroke while detained in 1 990; has returned to Kenya following medical attention in London. The rivalry has ethnic dimensions, with senior leaders of Matiba's Kikuyu tribe pressIng for hIm over Mr. Odinga, a Luo who has consistently fought for a more democratic process.

Neither Matiba nor Odinga have the energy to lead FORD. OdInga, an octogenarian, may be senile, rvlàtiba has recovered but cannot read or write.

Two other old-style FORD leaders are Martin Shtkuku and MasInde Muliro. Mr. Shikku is regarded as an unprIncipled charlatan, and Mr.. Muliro is seen as authoritarian. Though most Kenyans feel these men have made useful contributions, they want them to step aside for a younger candrdate. Their retirements, coupled with MoPs departure, might allow Kenya to break with the politics of ethnicity, patronage and repression.

Focusing on leadership and elections while the country stares at a clvi] war in the face is short sighted. Without a quick change there may be no country to rule. The opposition must return to the basics. A mindless rush towards elections after two decades of dictatorship is wrong.

First, the opposition must press the government to end ethnIc violence. It then should call for a national conference or a constituent assembly to draw up a new constitution, repeal repressive legislation, and appoint an interim government to oversee the countrys first free and fair elections. As both the Liberian and Somali experiences demonstrate, intransigent dictators would rather destroy a country than give up power. Hence, the opposition should abandon narrow and personal agendas and focus on creating democratic institutions - else one of Africa's bright spots will be no more.

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281 AI11114 Democracy's Bid Fades in Ethiopia MAKAU WA MUTUA

It is a tragic irony that Ethiopia, one of two African countries that successfully resisted colonialization, may now be the last to loin the growing community of emergent democrades on the continent. In 1991, the Ethiopian People's Revolutionary Democratic Front (EPRDF) overthrew the military dictatorship of Mengistu Haile-Mariam and established the Transitional Government of EthIopia (TGE), ostensibly to introduce democracy for the first time in the country's history.

Regrettably, the TGE has since reversed gears. It must draft a new constitution and conduct presidential and parliamentary elections before its mandate expires in February 1994. But the credibility of the state has been shattered by its domination and manIpulation by the EPRDF, the alliance of satellite ethnic groups controlled by the Tigre People's Rebellion Front (TPLF). The first blow came when the Oromo Liberation Front (OLF), a major partner, withdrew from the TGE and boycotted the June 1992 regional elections. Those elections were won by the EPRDF and its satellite ethnic organizations.

Since then, the TGE has taken a number of steps to consolidate its power and crush all genuine opposition to its rule. In January this year, EPRDF security forces shot and killed at least one Addis Ababa university student and seriously injured scores of others as they protested the role of the United Nafions in the Eritrea independence referendum.

The Ethiopian Human Rights Council (EHRC), the first independent and only openly critical human rIghts group in the country, has come under sharp attack from the TGE for exposing human rights abuses. Its founder, MesfIn Woldet Mariam, was denied an exit visa to attend the World Conference on Human Rights in Vienna in June.

The EPRDF has treated disagreement with its transItion program as unpatriotic. In April the southern coalition, an important group of non-EPRDF parties was expelled from the government after attending a meeting of opposition parties in Paris.

The constitutional commission, the body mandated to draft a new constitution, was handpicked by the EPROF. It has no real plans to involve the citizenry in drafting the constitution.

Ethiopias long and remarkable history, dating back thousands of years, has been dominated by absolute monarchs and rulers. Many had hoped that the ICE would reject the repressive past. Sadly, it appears to have failed, many believe, because ose responsible for creating the new state are incompetent, inexperIenced, and t important intolerant and undemocratic. The current minister for economic

282 planning. During Mohamed, is also a force from the past. He was also recently appointed president of Addis Ababa University, the position he held under Mengistu and reportedly used to recruit students to fight against the EPRDF.

Many others are simply not qualified. The Prime Minister and the head of the Ethiopian Peoples' Democratic Movement, Tamrat Layne., is a hIgh school dropout. Another influential official is Dawir Yohannes, a law school dropout who Is a legal special adviser to the President. An unreconstructed Marxist, Mr. Yohannes, is the President's man in the Constitutional Commission.

Behind these senior off icials stand four political godfathers, the core of the TPLF, who dictate the political process. These are: Meles Zenawi, the young and bright president of the TCE and secretary general of the TPLF; Sic Abraham, minister for defense and a TPLF commander; Seyourn Mesfin, minister for foreign affairs. and Sebhat Nega, one of the founders of the TPLF and now responsible for organizing the EPRDF. None of the four believes in open polItical competition, which spells doom for transition process.

Indications are that they intend to use any means necessary to entrench the EPRDF in power and in effect create a one-party state. Such an imposition is foolhardy; it may lead to another savage civil war and total disintegration of Ethiopia

23 A South African Election is a Big First Step MAKAU WA MUTtJA AND MARGARET BURNHAM

Nelson Mandela and the African National Congress have been declared the overwhelming victors in South Africa's first all-race elections. For those of us fortunate enough to bear witness to the process, what we saw inspired new respect for the symbolic power of the ballot.

With an eagerness and optimism reminiscent of that of Mississippi's Fannie Lou I -lamer, South Africans - thousands of whom barely knew how to read or write - stood for hours in long lInes, undeterred by horrific violence and determIned to be part of a new day.

South Africa's transition from racist autocracy to mutipartism democracy has been breath taking. The election epitomized a national repudiation of the past, and the international community should rightly take pride in hastening this historic moment. For African-Americans, the defeat of apartheid represents their growing clout in the American foreign policy debate.

African-Americans authored and sold the anti-apartheid message to the American public and forced it on the cynical Reagan administration. By and large. Americans of African decent determined the content of American policy to an African country for the first time. Pay McDougall, the director of the Southern Project of the Lawyer's Committee for Civil Rights Under Law, underscores the point. Appointed by the South African leader, she is the sole American representative to the Independent Electoral Commission, the official body mandated to run and monitor the South African election. For more than a decade, she led the American public in hand-weaving policy toward apartheid.

But the history of remarkable achievement must not end with the introductIon of black majority rule. While elections are a watershed, they are merely one event in a historical process. The real work of reconstructing South Africa began the day after the elections. The ravages wrought on Africans by apartheid-mass removals, killings and gross inequalities between whites and blacks have been well rehearsed.

Now it is this horrible legacy that must be reversed. Although significant, the electoral victory will mean little.un]ess it is the basis for construction of an economic democracy; that is full equality in the nation's economic life.

In this process, South Africans must also face the challenges posed by legitimate demands for affirmative action.

iprehensive and equitable land reform must be undertaken. The immediate and restructuring of the national economy in employment and access to capital h284 and the allocation of public resources must be implemented.

In short, the redistribution of resources -access control and ownership - must correspond to and reflect the demographic make-up. Unless the democratic Mandela government works to meet these challenges, peace and stability in southern Africa will remain - as it has for centuries - a distant aspiration.

In its search for a stable and prosperous democracy, South Africa, soon to be the world's first black-ruled industrialized state, must not stand alone. The election must not be mistaken as an end in itselff, but rather as an opportunity. The vigour and skill that went to opposing apartheid must now be retooled to speed reconstruction.

Hundreds of African--Americans observed the clection, many of them in South Africa for the first time. They and others in the anti-apartheid movement must now take the lead in encouraging the Clinton administration to support materially and financially the process of reform. While President Clinton's recent announcement of support is heartening, a well-defined and comprehensive policy -designed to stimulate economIc growth - must be formulated.

Such pro-active support is crucial because of the meaning of South Africa to Africans and African-Americans. The triumph of democracy in South Africa will reverberate from Nairobi and Lagos to Watts, Harlem and Roxburv.

The country's industrial base, constructed on the backs of Africans, must now he harnessed to serve them and to engineer the economic growth revival of the region from the oilficlds of Angola to the plains of Mozambique. The pan-Africariist implIcations of a black ruled nation, capable of economic competition on the world stage would bring psychological and practical benefits to the black family everywhere.

African-Americans have a strong stake in mobilizing private and public capital to help give South African democracy legs on which it can effectively walk.

285 AA UN Must Make Rwcinda a Priority MAKAU WA MUTUA

Since the death last month of President Juvena! Habyarimana in a mysterious plane crash, the killings in Rwanda evoke the images of an African holocaust. Pregnant women hacked to death. Children butchered in orphanages. Freeing civilians hunted down and slaughtered.

In one month, as many as 250,000 Rwandans - mostly innocent civilians - mercilessly massacred. Another 500,000 cross the border and seek refuge in neighbouring Tanzania. What hatred could unleash such deadly and ferocious reactions? Do we know what is happening? Can anything be done to stop it?

Most news reports want us to believe that Hutus and Tcitsis are locked in anóthr interminable, age-old senseless tribal war. The truth is in fact more complex. A few hIstorical facts are in order.

Al! Rwandans belong to one ethnic group, the Banyarwanda, and speak one Bantu language, Kinyarwanda But they are composed of three sub-groups: the Hutu, about 85 percent; the Tutsi. about 12 percent; and the Twa, about 1 percent. Scholars are not agreed whether these sub-groups are classes or castes, although it is not disputed that sharp class divisions existed among them.

Prior to the arrival of Belgian colonialists, the minority Tutsi monarchy ruled over the Hutu and Twa In a feudal-client relationship.

Belgians transformed communal relations and sharpened ethnic tensions by ruling through a narrow Tutsi royalty. The access to resources and power that Tutsf collaborators enjoyed under the colonial state irreversibly polarized HUtU-TLItS1 relations.

In 1959, Hutus killed many Tutsis in a successful revolt against Tutsi/Belgian rule. The Belgians quickly switched sides., abolished the centralized monarchy1 and granted independence under Gregoire Kayibanda, a Hutu, in 1962,

Ic Most Tutsis, deposed from power and stripped of privilege, fled the country. Those who stayed were subjected to constant harassment, killings, and discriminatory treatment, first under Kayibanda and later under Habyariniana, another Hutu, who tookpowerirtacoupin 1973.

Today's horrific bloodletting is a result of this class, political and caste cleavage. Flabyarirnana constructed a highly authoritarian one-party state in which a small ction of northern Hutus controlled and consumed the lion's share of the country's se. This elite also manned the army and the security forces.

286 AmIdst this repression, the Rwanda Patriotic Front (RPF) - composed mainly of Tutsi exiles in Uganda - invaded Rwanda in 1990 and demanded the return of refugees and a more open and democratic society.

The government used the invasion as a pretext to kill thousands of Tutsi. 'accomplices" and clamp down on Hutu dissenters. The RPF fought the government to a standstill and occupied the northern portion of the country. Both sides committed massive human, rights violations.

To increase his support among Hutus, HabyarImana widened his single-party government to a four-party coalItion with opposition parties. But he retained control over party militia and the security forces. In March 1993, an international human rights commission found the government, including 1-labyarimana, militias attached to his party, the army, and local adniinistrators responsIble for killing thousands of TutSis and opposition activists. ironically, Habyarfniana was cut down as he was about to start a progranme of national reconciliation. Last August the RPF and the government signed a peace treaty. They agreed to transfer most presidential powers during a 22-rriortth transitional period leading to national elections.

Then, on April 6, all hell broke loose when Habyarimana's plane was shot down as it prepared to land at Kigali airport.

There is little doubt that Habyarimana was killed by Hutu hardliners opposed to democracy and the expansion of political space. They have targeted for slaughter all moderate Hutus and Tutsis. At the cost of lying waste to the whole country, these hawks reject sharing power and wealth with their fellow citizens. The war is a battle for the country's economic life.

The International community should not simply watch as innocents are slaughtered. The U.N Security Council must make Rwanda an immediate priority. It must reverse its foolish and callous decision to reduce its troop strength and immediately raise several thousand peacekeepers to stop the carnage.

In the United States, the congressional black caucus must lead the calls for a forceful United Nations intervention at all forums and seek a political solution between the warrIng parties.

Now that the 1PF is poised to take over the capital, there could be additional slaughter and the exodus of refugees. The Hutu hardlirie butchers must be stopped before they wipe out a whole nation.

281 .4114 Forgive, but don't Forget MAKAU WA MUTUA

The decision last month by the Mandela government to set up a truth commission to investigate abuses during the apartheid years Is the strongest indication that South Africa's transition to democracy may be genuine The truth commission - which must be empowered to compel witnesses and publish its findings - will be a crucial step in reconstructing a tolerant society from the ruins of apartheid. This confrontation with the past is the midwife of democracy.

There is a growing realization internationally that a systematic accounting for past abuses is fundamental to democratization. Such commissions have played key roles in political transitions in Chile. El Salvador and Argentina. While there is no correct formula for addressing past human rights abuses, any process of transition mttst completely unearth the scope of pastabuses and make such information public. Unless such a step is taken, Societies cannot learn from the mistakes of the past and create processes and institutions to make sure that repression is not repeated. Victimizers must be publicly Identified and prosecuted, and repressive policies must be repudiated.

'fl-uth commissions could roll back the long night of tyranny in several African countries. Malawi is one such fertile ground. Malawl became the youngest African democracy in May when it voted out Hastings Kamuzu Banda after 30 years of totalitarian, one- party rule. During that period assassination, torture and arbitrary detention of perceived government opponents were commonplace.

Although Muluzi intends to investigate the murders of four prominent politicians in 1983, he appears reluctant to fully examine the past. Many senior officials of the new government, including Muluzi himself, were responsible for the creation of the demonic state terrorized Malawians. Muluzi was at one time the secretary general of the Malawi Congress Party, Bandas principal instrument of misrule. Aleke Banda, MuluzPs finance minister, was once the commander of the Malawi Young Pioneers, thecruel paramilitary unit responsible for many political killings Admittedly, most of Muluzi's senior aides fell out with Banda, and many were Imprisoned, tortured and exiled. A truth commission would most likely implicate a number of them in past violations, but their role in weaving the despotic state must be exposed to forge a genuine democratic ethos.

Soon after taking office, Muluzi declared that there would b a witch-hunt against abusive officials. That is wrong. The choice for emergent democracies is not between complete forgetfulness and a witch-hunt. Every society should determine the balance it must achieve between retribution and forgiveness. Mandela has indicated that some er killers In the South African security forces may be forgiven if they come forward 6;remorsefully tell all. In other cases, prosecutions must be initiated. Some victimizers

288 must face their victims in court. What is important is that the brutal past not simply be forgotten as though it did not happen.

There are a number of other African countries where a truth commission was or Is badly needed as democratic transformation gets underway. In Ethiopia. the Meles Zenawi government, which overthrew the abusive dictatorship of Mengistu Haile Mariam in 1991, should have established an independent commission of inquiry. The cathartic exercise would have legitimized the transition. But the Zenawl government has instead reverted to dictatorship, rendering its planned prosecutions of some former officials an exercise in futility.

Even though two years ago, President Daniel arap Mo! of Kenya stole the first open election in decades, a human rights culture might have taken root had a body to critically examine past government misconduct and oversee the reform of key institutions been constituted. Sadly, Moi has slowly clawed his way back to absolute power by harassing, prosecuting and buying off his critics.

Emergent democracies in Africa will fail unless truth commissions are aIlowd to show nations what they did wrong and how despotic states prevented democracy. They may hold the key to the success of Africa's second liberation.

Victims should not be asked to forgive and forget: They might forgive, but only after the truth is known and have been given an opportunity to pursue their tormentors in courts of law. Then, and only then, can a nation collectively start the long road to democracy. Otherwise, transitions - Including South Africa's - that brink at history will be doomed to repeat it.

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289 A4I4 Redrawing the Map along African Lines MAKAU WA MUTUA

Even though there is some good news out of Africa, the enduring images of the continent are grisly scenes of the dead, the dying and the desperate in Rwanda and the refugee's camps in Zaire. The enormity of the catastrophe is so great that if It were repeated elsewhere it probably would plunge Africa into prehistory. Perhaps a dozen other countries, from Nigeria to Angola, precariously dance on the precipice. The consequences of the failed: postcoloriial states are so destructive that radical solutions must be now contemplated to avert the wholesale destruction of groups of the African people. Certain sacred cows of International law may be set aside to save Africa.

Many Americans incorrectly think that Africans are incapable of governing themselves. But the current crisis of the modern African state has Its roots in European and Atab expansion and their distortion of the continent's political map. With the possible exception of the AmerIca's, there is no other contInent on which European influence has been so profound. Some of the most troubled lands, such as Angola and Mozarnbique, were brutally colonized by the Portuguese for 300 years until the mid- 1 970s. The traurria of that history is evident to day. For an equally long period until early this century, Europeans and Arabs captured and sold millions of Africans as slaves. But the single most important event may have taken place in Berlin in 1885.

In that city. major European powers carved up a blank map of Africa by the strokes of a pen. They created more than 40 entIrely new countries overnight without regard to existing political entities, ethnic boundaries, historical relationships, alliances, and geographic and demographic variables.

AfrIcans had to live within the new boundaries in a completely alien political system with contrived citizenry. The analogy of the colomal state as a jail is appropriate. These territorial units could not inspire loyalty because they were unnatural and forced. They dismally failed to forge new nationalization identities. Although Africans fiercely struggled against colonIalism., the postcolonial state they inherited continues to suffer from sImilar deficiencies: its Structures, demographic composition and boundaries are colonIal.

Since citizens lack an instinctual and natIonalistic bond to the state, those who become rulers pillage it. They resort to massive human rights vIolations to hold power and to keep their fellow citizens down. Meanwhile, the single party or the impenetrable state is cast as the guarantor of national unity and development. Those who criticize are = stigmatized as unpatriotic. Btu soon this terrorist organization masquerading as the e is attacked or spins out of control because of its own paranoia. Inevitably, ethnic, LaI and economic cleavages burst open, pitting citizen against citizen. The alien

290 state, lacking a popular base, either crumbles or disintegrates, as It did in Somalia, or prosecutes a genocide war, as it has done in Rwanda. Liberia and Sudan

There is llttle hope for Africa unless it courageously addresses the nature of the postcoloniai state and reconfigures the political landscape of the continent. Setting aside the foolish and racist talk about recolonizing Africa to save it, responsible Africans must for now discard several principles of international law better suited for Europe. The first of these fetishes is state sovereignty, a concept that allows ridiculous colonial entities, such as the Gambia, Surundi, Liberia, Malawi, Burkina Paso and Tunisia, to claim inviolabilIty. The second is the principal of non-interference in the Internal affairs of other states. These pillars of the law of nations have allowed callous elites to swim in small ponds under the pretext of statehood.

Africans must reject these straightjackets to reverse the geographic and demographic decisions made in Berlin. Since those creations are not viable, their permanence should be repudiated. A continental organization should be formed to redraw the map of Africa to construct viable states. Perhaps the OrganizatIon of African UnIty - whose raison d'etre ended with the abolition of the apartheid in South Africa - could fustily its continued existence by making a new map for Africa. The criteria for the creation of new states should include historical factors, especially the demographic contours of Africa pre-co!onial states and polItical formations, ethnic similarities and alliances based on cultural homogeneity and economic viability. The new map of Africa should hold no more that 15 states as opposed to the 50 today.

Based on these criteria, roy map of Africa creates new countries by abolishing some and combing others. The republic of Kusini (which means "south" in the Kiswahili language) would take South Africa, Namibia, Zimbabwe, Mozambique, Lesotho., Swaziland and Ma lawi —nations with shared historical, economic and ethnic interests.

The new Egypt would combine Egypt and Arabian Sudan, Nubian; the ancient name for southern Sudan would bring together Kenya, Uganda, Tanzania and southern Sudan,

Mali - named for an ancient empire would swallow up Mali, Senegal, Guinea, Sierra Leone, Liberia, the Gambia, Guinea Bissau and Cape Verde.

Somalia would be beefed up by Djibouti, the Ogaden province of Ethiopia and Kenya's northern province that is inhabited by Somalia ethnIc groups.

Congo would combine ethnically similar people Zaire; Congo. Burundi. the Central African Republic and Rwanda, while Ghana, another ancient kingdom would consist of Ghana, Ivory Coast, Togo, Benin, Nigeria, Cameron, Gabon, Equatorial Guinea and Sao Tome and Principe.

Beriin - named for a sprawling ancient, kingdom would take Chad, Burkina Faso an4 Niger. AlgerIa and Angola remain the same, while Libya takes over Tunisia, Morocr Western Sahara and Mauritania become.Sahara. The state of Kisiwani - which rr

291 "island" in Kiswahili - brings Madagascar.1 MauritIus and the Comoros.

Few Africans owe their allegiance to the emergence state: many identify with an ethnIc group- a loyalty that predates colonialism- or the pan-African's idea of Africa as home. The colonial state and its successor have been so alienated from the people that development of natIonal conscIousness was not possib[e. Newer, larger and democratic entities - created by Africans for Africans - stands a better chance of instilling loyalty and stroking the inherent ve for the motherland. This may be the only formula that will reverse Africa's disfiguration and save it from extinction

hi,6, 292 Blame to Share in Africa MAKAU WA MVTUA

The recent massacre of eight western tourists in Uganda was a horrible event, but the response of the Ugandan and Rwanda Government has been just as chilling. Uganda's President, Yoweri Museveni, who came to power in a coup in 1986, vowed to kill the suspects on sight, even before their guilt was established.

Several days later, he announced that Rwandan and Llgandan tomes had killed 1 5 Hut-u militiamen. And with tacit approval of the United States and Britain, Mr. Museveni has suspended all human rights for the Hut-u in the troubled areas. it took the death of the westerns tourists to focus attention on abominations being committed in the region. Hundreds of African lives are being lost each day beFause of a conflict that pits Congo (formerly Zaire) against predominantly Tutst rebels who are backed bythe governments of Uganda and Rwanda.

The United States has a history of backing African dictators. Mobutu Sese Seko of Zaire and Samuel Doe of Liberia were darlings of the West, just as Mr. Museveni of Uganda and Paul Kagame, the de facto head of the State of Rwarida, are now. Like Mr. Mobutu from the I 90's to the mid 1 990's, Mr. Museveni, whose country the World Bank and the fnternational Monetary Fund are trying to make a success story, has become the policeman for American interests in East and Central Africa. The United States has extolled him as a model leader.

Mr.. Kagame and his minorIty Tutsi Government in Rwanda owe their power to Mr. Museveni. Now the United States is assisting thei.r campaign to overthrow another despot President Laurent Kabila of Congo and place him with a pliable client.

Despite support from the West, Mr. Museveni is facing a longstanding insurgency at home, and Mr. Kagame rules a country that is more than 80 per cent Hutu, many of whom have fled to Congo after mass Hutu killings of Tutsi and moderate 1-lutu in 1994, may recapture power in Rwanda- unless a democratic power-sharing arrangement can be worked out between the HLItU and the Tutsi. In the past couple of years. Hutu rebels have overrun prisons and other government institutions in several parts of Rwanda.

But-Mr. Museveni and Mr. Kagarne want the West to believe that they can exert effective I control in the region and that Western aid should be increased. Mr. Museveni's message

to the suspected kii1ers seems clear: for every white tourist's life they have taken, his -I government will take dozens of i-tutu lives. Unfortunately, his crackdown, tar from pacifving the region, can only beget more violence. A Mr. Museveni is not the only one responsible for the current crisis. Tourop 293 and the Western countries should not allow tourists to travel to the vortex of the Central African conflict, lust imagine tourists travelling to Kosovo today or to Bosnia during its civil war.

In Rwanda, we cannot ignore that the Hutu make up the vast majority of people, and that the country belongs to them no less than to the Tutsi. American support is not enough to re-establish exclusive Tutsi rule, Moreover, revenge executions of Hutu suspects are no answer, either. The killers of the tourists should be apprehended and tried in Ugandan Courts. The United States cannot, by its acquiescence, appear to tolerate the human rights violence by Rwarida and ugandan Governments, even as it calls on China and other countries to respect them.

In the long term, the United States should support Africa nIed efforts for a settlement between Mr. k'ahila and the predominantly Tutsi rebels, along with the withdrawal of all Ugandan and Rwandan troops from Congo. Only a multinational peace keeping force, so readily deployed elsewhere in the world, can secure the borders of all three Countries.

294 4. International Commentary on Kenya Is Kenya Ripe for Bloodshed Rwanda-style' MAINA KIAI

Jt was recently reported that ethnic violence sprung out again in Bujumbura, Burundi, pitting the Tutsi army against the majority Hutu people.

Saying they were flushing out Hutu militias in the area, the army killed the elderly, the sick and the very young. This violence, which many observers have been forecasting for the past year, is moving Bururidi precariously close to becoming the third African country to succumb to genocide of the Rwanda and Somalia proportions. Not to be outdone, the military government of Sani Abacha in Nigeria continues its brutal ways, precipitating tension and civil strife in the country. This, after Abacha outmaneuvered his ally Ibrahim Babaginda who had nullified his (Babaginda's) own carefully planned and orchestrated "election." Two years have since passed since that "election andtit is clear that peace, stability and democracy will prevail in Nigeria in the near future.

And we cannot forget the Liberians. Sudanese, Sierra Leonians and Angolans who have been at war for so long that few remember what the wars were all about in the first place. Most of the younger generations in these countries know no other situation.

Why is there all this commotion, tension and strife in such divergent parts of Africa? Why has Africa, from the mid- l%Os. never had even one year of continent-wide peace? And will Kenya avoid being part of this mess?

Perhaps we can get some answers, especially to the question relating to Kenya, by looking at some of the conditions that have led to war and strife In these countries and see if some of those conditions exist here.

Rwanda makes a good case study for a number of reasons. First, the Rwandari crisis is constantly (and wrongly) thrust in our faces as an example of i.vhat multi-partyism can lead to. The Rwandan experience is also depicted as a symbol of the evil of tribalism in Atrica...but only if that tribalism comes from opposition groups. Second, Rwanda has particular significance for Kenyans, because of the warm welcome the country has extended to former hIgh-ranking members of the Juvenal Habyarimana regime, many of whom are implicated in the genocide that took place there.

Foreign Minister Kalonzo Musyoka's argument - that Kenya believes people are innocent until proven guilty - is contrary to the treatment that opposition politicians and independent critics face in Kenya The expulsion of two Rwandese diplomats from Kenya in two months for exposing these 'reIugees" and their plans point to some very high level connections.

es Kenya have any of the conditions that led to the chaos in Rwanda? In September the London based human rights group African Rights released an extensive 296 Is Kenya Ripe for Bloodshed Rwanda-style' MAINA KIAI

It was recently reported that ethnic violence sprung out again in Bu!umbura, Burtirtdi, pitting the Tutsi army against the majority Hutu people.

Saying they were flushing out Hutu militias in the area, the army killed the elderly, the sick and the very young. This violence, which many observers have been forecasting for the past year, is moving Burundi precariously close to becoming the third African country to succumb to genocide of the Rwanda and Somalia proportions Not to be outdone, the military go'ernment of Sani Abacha in Nigeria continues its brutal ways, precipitating tension and civil strife in the country. This, after Abacha outmaneuvered his ally Ibrahim Babaginda who had nullified his (Babaginda's) own carefully planned and orchestrated "election." Two years have since passed since that "election" and&it is clear that peace, stability and democracy will prevail in Nigeria in the near future.

Why is there all this commotion, tension and strife in such divergent parts of Africa? Why has Africa, from the mid- I 960s, never had even one year of continent-wide peace? And will Kenya avoid being part of this mess?

Perhaps we can get some answers, especially to the question relating to Kenya, by looking at some of the conditions that have led to war and strife in these countries and see if some of those conditions exist here.

Rwanda makes a good case study for a number of reasons. First, the Rwandan crisis is constantly (and wrongly) thrust in our faces as an example of what multi-partyism can lead to The Rwandan experience is also depicted as a symbol of the evil of tribalism in Africa ... but only if that tribalism comes from opposition groups. Second Rwanda has particular significance for Kenyans, because of the warm welcome the country has extended to former high-ranking members of the Juvenal Habyarimana regime, many of whom are implicated in the genocide that took place there.

Foreign Minister Kalonzo Musyoka's argument - that Kenya believes people are innocent until proven guilty is contrary to the treatment that opposition politicians and independent critics face in Kenya. The expulsion of two Rwandese diplomats from Kenya in two months for exposing these "refugees" and their plans point to some very high level connections,

s Kenya have any of the conditions that led to the chaos in Rwanda? In September the London based human rights group African Rights released an extensive 296 report on the crises in Rwanda. The 700page report, Rwcinda: Death, Despair and - Defiance, also.looked at possible reasons for the genocide. It is worth noting that the genocide in Rwanda was well planned and orchestrated, as it was carried out with less technology tlianthat used by Hitler in his plan to exterminate thejews during the World War I!.

The report docunients, through personal statement and testimony, some of the horrific acts that occurred in Rwanda. It gives a hlsturical perspective to the genocides addressing the ethnic issue that many have stated was one of the maor reasons for the crIsis. In its analysis, the report finds that the war in iwanda was not a tr(baI

conflict." Rather, ' 1 political manipulation of ethnicity (was) the main culprit for the ethnic problem". Indeed, the genocide was a political strctegy adopted by u clique of powerful people at the centre of the government in Rwanda. Their plan was to hold onto power at all cos:s. The report traces the history of the idea of different ethic groups in Rwanda, asserting that until the 1 9th century, the terms Tutsi and Hutu referred to oceupatons, rather than different tribes. Thus the Thtsi were cattle-herders, soldiers and administrators, while the tillers were Hutu.

Individuals could n-iove from Tutsi to FJutu and vice versa, and intermarriage was common. But by the mid We of the 19th century, the cattle herders, that are the Tutsi, began to become a dominant society because cattle were the main form of money or disposable wealth.

Colonial rule in Rwanda, as in every African state, exacerbated the dIfferences as the colonial regime pursued a policy of divide and rule. They used the Tutsi as their agents and conjured up theories of tribal superiority to justify not only the use of Tutsi, but also their own rule over Africa. Naturally, intense disaffection arose among the Hutu and in 1 91 2 a rebellion broke out that was brutally put down.

The dawn of independence, however, resulted in a change of sides by the Belgian colonial masters. it was clear that those who were aggrieved by Tutsi damnance and who were considered 1-lutu were in the rnalority and would take power at independence. Belgian troops presided over the violent end of Tutsi rule in 1959, and many more fled. Violence over the next four years meant that a steady stream of refugees left Rwanda. The I-iutu regime that took over inherited the Tutsi and colonial structures in their entirety. The only difference was that Hutus, rather than BeLgians or Tutsis, now manned key positions in government.

Tutsis were purged from every institution and estalishnient in society. It was only in the church that they could advance. In 1 973, in a 1bid to control and purge the Church of the Tutsi.' the Hutu government embarked on ethnic violence aimed at rooting them out from seminaries and other educational institutions run by the churches. But the ensuing violence only discredited the government more, and General luvenal Habyarirnana, a Hutu, took over in a palace coup. He immediately stopped the vio1enc against the Tutsi and appeared to focus on economic development. However, I' systematic discrimthation against the Tutsi continued and the repressive strur 297 inherIted from the previous regime were not changed.

Under the pretext of balancing the distribution of resources, Habyarimana excluded the Tutsi completely, while rewarding the Hutu from the "blessed region" - the northwest where he was from. Under this policy, even the Hutus from the south, cast and central regions were excluded.

The report notes that under Habyarimana's rule, a clique of people exercised most of the power of state patronage. They had a licence to print money and the rulinfamiIies grew extremely rich. Development projects were diverted to the Thiessed regIon" and the "mafia" around Habyarimána lined their pockets. Habyarimana also propagated the myth that Rwanda was overpopulated and could not accommodate the thousands of refugees who had fled the country after 1959 and after 1973. These refugees were rendered stateless as most nations refused to assimilate them into their societies, and formed the basis of the Rwandese Patriotic Front (RPF). It was this group that led the attacks on Rwanda in 1990, trying to force their accommodation and acceptance by the Rwandese state.

The invasion of Rwanda by the RPF is the watershed mark, as it forcefully articulated some of the serious contradictions that marked the Rwandese nation. It also re-defined the events of the country, and heightened the plans for the "final solution." But rather than deaJ with the issues that were drawn out., the 1-Jahyarimana regime preferred to dilly daily even when it was clear that the RPF was not interested in a military solution, and that the Rwandese army would not effect a military victory.

The invasion also coincided with domestic and international pressure on Habyarimana regime to open the political system to pluralism. When he complied, several parties were formed. The government's strategy was to subvert these parties by all means. Opposition politicians were described as bent on violence and as sympathizers of the RPF. Habyarimana also worked on splitting the opposition and was able to fragment the parties.

In September 1992, senior military officials issued a report on the "definition and identification of the enemy." The enemies were identIfied as Tutsis insIde and outside the country" and their allies were those persons "who give support to the enemy." Other enemies were Hutu dissatisfied with the government of the day, the unemployed and foreigners married to Ti.tsi women. Certain newspapers, human rights activists and anyone drawing attention to the human rights abuses in Rwanda were branded 'suspicious."

Between 1990 and 1994, the judicial system adopted a highly partisan stance. Political detainees arrested in Kigali after the RPF invasion were held in custody for months and only released after the international community protested. In contrast, Hutus ed of killing Tutsis and government opponents in Kibilira in 1990, for example, eleased quickly or not arrested at all. Most of the attacks agaInst government n ents were not investigated even after the release of a Kiliku like report hi 298 incriminating senior civil servants in the massacres.

The regime also used radio propaganda to demonise not only the RPF but also every Tutsi and moderate 1-lutu that exIsted. This was facilitated by the regime's total control of radio, with the disastrous consequence of genocide by villagers Probably the most worrying dimension was the Introduction of interaha,nwe as the militia of the ruling party. They were armed by the army and trained in the use of guns and grenades. They were a clandestine lot, whose existence the regime and Habyarimana vehemently denied, describing them as boy scouts" or forest guards. (Remember the warrIors during the Kenyan clashes?)

Interestingly, iust after the RPF invasion, government troops faked an attack on Kigali on October 4, 1990, and used the "attack" to pick up thousands of Thtsis who were then held in abysmal conditions and tortured. This was a prelude toa state of insecurity and tension in the country with murders, assassinations and crime rising to dangerous levels. It is important to note that immediately after the plane crash that killed 1-labyarimana, the first step was assassination of oppositIon politicians. The Prcsi1entiaI Guard set up roadblocks as they hunted for their targets.

The worst of the crisis in Rwanda seems over, though reports about the re-arming of the Hutu refugees in Zaire (President Mobutu was a close friend of Habyarimana as was President Moi) are very worrying. One hopes that Rwanda, and other African countries, have leant from this terrible experience.

While some of these conditions seem familiar to observers of the Kenyan scene, it is clear that Kenya still has some way to go before getting to the Rwandan situation. However, there are some conditions already existing that are potentially ripe for exploitation. It should be remembered that it basically took three years after the RPF invasion to get to the genocide in Rwanda. Until then, the same conditions of a repressive legal and administrative structure, unbridled corruption, lust for total and unchallenged power, radio propaganda, lack of dialogue, and the unwillingness to compromIse that were the key elements leading to the 1inal solution," existed in Rwanda as they do in Kenya.

299 41114 Kenya's Freedom Rating among the Lowest on Earth

Last December, the U.S. based organisation. Freedom House, released its annual rankings of the state of freedom in all countries of the world. Kenya did not come off very well.

Freedom House started ranking countries during the days of the cold war between the east and the west. Then, the rankings were part of the weaponry used by the west in its struggle for world domInance against the east.

At the time, those countries associated with the east were more likely to get a low or negative rating on the status of freedom, while those associated with the west generail' scored well.

Kenya was then firmly within the western orbit, and generally scored quite highly compared to those African countries then considered part of the eastern sphere of influence.

With the end of the cold war, such parochial and political considerations have since receded, and a more objective ranking is now used. The rankIng covers two Issues: political freedoms and civil liberties. Countries are ranked from one for excellent to seven for pathetic.

In last year's survey, Kenya received an average rating of 6.5, with a seven for political rIghts, and a six for civil liberties.

Other countrIes with the same average rating included the islamic republic of Iran, Liberia, Zaire, Rwanda, Bahrain, Qatar and Gambij. The republic of Uzbekfstan, which is controlled by communists, was also in this worst group.

The worst countries - scoring seven In both political rIghts and civil lIberties included Burundi, AfghanIstan, China, Cuba, Iraq, Libya, Somalia, Sudan, Syria and Equatorial Guinea. The freest African countries with an average of 1.5 were Cape Verde, Mauritius, Sao Tome and Principe, and South Africa,

Closely following with an average of two are Benin, Botswana and Mali, while Malawi and Namibia were rated free with a 2.5 average.

The partly free category is where many African countries fall. These include M and the Seychelles with an average of three; Ghana, Guinea Bissau and bique with 3.5; Central African Republic, the Comoros, Congo, Lesotho, Senegal arida with four.

300 Tanzania, our southern neighbour, is rated as partly free with an average of five, while Ethiopia to our north is rated with an average of 4.5. The top category of one mostly comprises western countries such a Australia, Sweden, Norway, Ireland, Netherlands and the United States. However, some "third world" countries also made the top. These were the Barbados and Belize on the Caribbean and South America respectively, and Kiribati on the pacific.

To compliment this respected annual survey, the Wall Street Journal recently began its own survey of "economic freedom" in the world. This survey, which Is obviously a proponent of free market capitalism, looks at all the economies of the world judging themon what restrictions they offer to a tree market economy. This is what the World Bank and the IMF have been advocating in Africa.

Political rights are defined as those that enable individual and party participation In the gover,ance of their country. They hinge on questions such as: are political parties easily and regularly registered? Are they obstructed from pursuIng their legitimate agendas? Do they hold rallies and meetings easily? Are they covered by thet state media? Does the government treat its opposition as a legitimate and necessary part of the country's governance? Is changing the government through the vote a real option?

Anyone who has spent iust weeks in Kenya will know that the answers to almost all those questions is "no." Safina, IPK and other political parties have been waiting registration since 1995. No reasons have been given by the registrar for this delay.

And then we all know how often opposition party meetings are broken up by police and small-tIme district administrators because they are not licensed or because the meeting is "now insulting the president and the government. Yet, as Minister William ole Ntimama admitted recently, he knows of no minister who has ever applied for a licence) though the law demands that all political meetings be licensed.

The state of Kenya BroadcastIng CorporatIon Is also clear. The only opposition news covered is in connection with defections or when the opposition is being lambasted.

The fact that the PresIdent has only officially met the opposition once signifies the gcvernment 1s views. And remember the way the government rejected requests from the Parliamentary Public Accounts Committee to visit military barracks to verify whether renovation works for which public funds had been allocated were carried out? (Isn't It strange that the "government" has more faIth in building contractors and other businessmen who have been involved in questionable deals than it has in elected members of parliament?)

Civil liberties are defined as those rights that each citizen has in conformity with the international covenant of civil and political rights, which Kenya ratified in 1976. They include the freedom of expression ) association, assembly, movement, conscience anA relIgion, the right to a fair trial, and the right to life. in all these categories ) Ke scores low. While there is considerably more respect for freedom of express 301 ever before, this respect is generally reserved to English speakers and writers. Attempts to promote freedom of expression through the broadcast media are not allowedfr and public rallies that criticise the government run the risk of disruption.

Freedom of association is weak, as doctors, dvii servants, students and university Jecturers who have tried to form trade unions can attest. Dr. Korwa Adar, the interim chairman of the Unregistered University Academic Staff Union, has spent time in jail and is unable to leave Kenya as his case is still pendIng.

Civil groups are now also finding out that it is not only politicians who are restricted in their freedom of assembly. Ask CLARION, the Lodwar CatholIc Justice and Peace Conirnission or the Ecumenical Justice and Peace project about disruption of their civic education workshops Or ask the Kenya Human Rights Commission and Kituo cha Sheria about their attempts to organise events in Uthiru and Korogocho respectively.

On the right of life, if Amadol Achakar, Kennedy Omondi, Jane Wanjira Matherige, Henry Mutua M'Aritho, Stephen Muthuo Kabara or Paul Mutuira were alive today, they would speak about the sheer cold-bloodedness of our security forces whose first instinct Is shoot first ask questions later." These innocent people died either by being shot to death or through torture in the hands of some sadistic policeman who is protected by the state.

The issue of police killings is not about bringing crime down. It is about a force that has gotten drunk with power and which has aflocated itself the dLlties of judge, jury and executioner.

I-

h,,. i6 I. 202 Victims Suing Victims MAKAU WA MUTUA

With the help of American lawyers, about 2,500 Kenyan and Tanzanian victims of the American Embassy bombings a year ago have announced their intention to sue the Linited States Government if it does not compensate them for their pain and sufferIng. These suits are appropriate and necessary.

The Clinton Administration has alleged Osama Bin Laden was responsible for the bombings. Regardless of who was responsible, more than 2,000 Kenyans and ii Tanzanians, as well as 12 Americans, were killed. The attack also permanently blinded or otherwise maimed about 6,000 people, mostly Kenyans.

Nevertheless, Washington has shown insufficient interest in assisting the African victims. It has provided Kenya with $42.3 million, but Kenyans say that most of the money has gone for the reconstruction of the two nearby office buildings destroyed in the blast, not to the victims and their families.

If the class-action lawsuits were filed, they would most likely be based on a claim of negligence. Washington has known for decades that Its diplomatic outposts might be bombing targets. The state department itself has acknowledged that a number of its embassies are vulnerable to attack. In fact, the house voted in July to authorIze $.1-4 billion to improve embassy security. Government reports before and after the bombings indicate that the Nairobi and Dar es Salaam embassies were among the least secure, and the American Ambassador to Kenya. Prudence Bushnell, asked for security help.

Thus, the victims' lawyers are likely to argue that the UnIted States was negligent on at least two unts first, it failed to provide adequate security in the face of a known and foreseeable danger, and second, it may have known the two embassies were targets or were under surveillance by attackers, yet it failed to warn Kenyaris and Tanzanians. An American-appointed panel that investigated the bombings pointed to a "collective failure" by successive administrations and congress that left embassies vulnerable to attack.

American critics of the proposed lawsuits argue that it is wrong to go after the government since it and Americans are victims too. They say the victims should go after the alleged attackers instead. But under tort law, it is not only the direct wrongdoer who faces liability. Those who have a particular relationship to the victims or possess certain knowledge might be liable, too, even though they are not directly responsible for the wrongful act itself.

American conduct after the bombings embittered Kenyans in particular. Kenyan lawye4ly claimed that Ms. Bushnell ordered the embassy compound sealed immediate

303 the explosion, denying local rescuers access. Stunned and traumatized Kenyans saw her claim that she took the action to prevent looting. Had the bombing occurred in Britain. many Kenyans believe President Clinton would have personally travelled there.

Bitterness aside, both Kenyans and Tanzanians have been gracious hosts for American missions. The American response to the victims plight may change that. Yes, a suit may further complicate this relationship. But it is the one avenue that victims have in an effort to rebuild their lives. Perhaps the best resolution would be an amicable settlement.

304 S. Gender Equality Men's Role in Women's Freedom MAKAU WA MUTUA

After weeks of wrangling that threatened the Fourth World Conference on Women. the People's Republic of China and women's groups have agreed on a site for the NGO Eorum - a parallel meeting of non-governmental organIzations - this August. But that lopsided compromise, whIch banishes the forum to Huairou, a rural hamlet 40 miles from the official Linited Nations meeting in Beijing, Is a timely indication of both the marginalization of women and the significance of the conference. it is a tragic commentary on the value that we, as men, place on our fellow human beings: individuals who are also our colleagues, mothers, neighbours, sisters, lovers and spouses.

There is no dispute about the abominable inequalities between men and women in' virtually every square of life, and neIther is there any doubt that the abuse of gender is the prImary reason for that combination. The difference is the monopoly of power and control of resources exercised by men to the exclusion of women. The results of that disparity translate into domestic violence and murder, sex tourism, exploitative labour, limits to power, poor education and health services, and in many cases the treatment of girls and women as chattel. It's the creation of powerlessness by power. The pretext for this hierarchy is frequently cited in religion and nature. But there is nothing new about that: white enslavers of Africans or the South African Boers combined religion and pseudo-science to justify their barbarism.

Like other oppressed groups in society, women have not rust been victims. Across the globe, even in the most gender-oppressive nations, resistance has risen over the decades. in many countries, women are winning the right to political participation. This avenue for political mobilization - marshalling women's development and activist groups through the language of rights - has started to bear fruit.

But the struggle has only begun. A significant step was taken in 1881 with the entry into force of the Convention on the Elimination of all Forms of Discrimination against Women. The most comprehensive and revolutIonary instrument on women's rights, the convention seeks to collapse the private-public distinction, the dichotomy that allows men and society to abuse gender behind the façade of privacy or non-state action. it requires states to abolIsh existing laws, customs, regulations and practices In that are discrimInatory against women.

The women's movement and those who believe in human rights and equal non- discriminatory treatment for all have as their fundamental targets norms, processes ndinslitutions in both the public and the private spheres that engender, perpetuate eate discrimination based on gender. The state must be in the forefront in or women. Even as religious, political and social conservatives - usually L 306 men joined by women with false consciousness - in this country and abroad fight back against equalization, there must be no let-up.

While many governments see the Beijing Conference as an opportunity to roll back gains made by women, it should be used as a forum to highlight the backlash and to press government to realize the promise of the women's convention.

Gender, unlike race, is our home -. we cannot create residential apartheid such as the suburb to escape it. it is in the eyes of our little boys and girls, our spouses and parents. We were raised with it. It is part of our consciousness. Every boy and man must realize that no one is free from the gender-instilled chauvinism and that each male automatically partially benefits from the society only because he was born male,

Men need to realize that one cannot live in a slaved or racist society without benefiting from slavery or racism, and so it is with life in a sexist, misogynous society. This means that ve, the men, are the reason for the dispossession of women. The ledger would read differently without the social, economic, political and religious values and structures that we have created.

There is no doubt in my mind that a gender-neutral Chinese state would not have banished the NGO forum to the villages Unlike that state, men must realize their own role in putting women down and work with them to construct values and institutions that overcome gender bias. Men must ioin women in questioning and dismantling sexual bias in the church, the mosque, the synagogue, at work, at home and in the society. In the end, it is the women who.must free themselves, but that freedom will be difficult to achieve unless men cooperate by becoming human partners, fathers, sans, colleagues and relatives. That Is why men must learn what the Beijing Conference intends to achieve and how they are an integral part of implementing its goals.

307 Parliament Needs to be Gender Sensitive NJERI KABEERI AND DR. WILLY MUTUNGA

We recall that in one of the parliamentary sessions, the late Paul Rum Chepkok demanded to know whether or not the Honourable and Learned Martha Karua, MP for Gichugu, had been circumcised. The late minister's argument then was that if the Honourable and Learned MP was not, she had no business contributing to the debate the House was then seized with. We salute the few MPs who came to the Honourable and Learned Karuas defence. The majority of the MP5 said nothing and the seriousness of the late ministers remark was forgotten. Parliament had on an earlier occasion slandered a Kenyan woman of national and international fame. Professor Wangari Maathai. This attack also has been forgotten. We Kenyans tend to have shocking memories.

In parliament comes the so-called Auckland 8ull' Honourable and Learned James Orengo, the MP for Ugenya, coined this expression. There is no doubt that the MP for Ugenya has in the current parlianient emerged as one of. If not the leading, outstanding debators. All we know about this sad incident is that a .Kenyan, part of the country's delegation to the Commonwealth meeting in Auckland, New Zealand, indecently exposed himself to a woman or attempted to rape her in a hotel room in Auckland. The incident became such a serious diplomatic issue between Kenya and New Zealand that immediate actions were taken. These actions were that the abuser was asked to leave New Zealand forthwith and it is in evidence that he did. There also followed a diplomatic pact between the two countries to preserve the privacy of their respective citizens and let diplomatic bygones be bygones.

It seems there is sufficient evidence to identify the abuser if one pierces together the details of the relevant airline manifests and considers Honourable Tony Ndilingc's public sworn testimony. we are sure that when it is politically expedient, this issue of the identity of the BulI" will again be raised in parliament. These, however, are not the details that make us revisit the Auckland incident.

There are Certain vital issues that were ignored in the parliamentary debate of this incident. Nobody in parliament seemed aware that the use of the word "bull" smacked to of male chauvinism and was gender insensItive. Gender insensitivity can be expressed through verbalised or body language. The abuser's act was being glorified on the floor of parliament. The parliamentary cries "Ourne, Dume, Dume simply reinforced 12 this insensitivity. Honourable Ndi[inge's remark that he was a "Kenyan Bull" did not mitigate the insult. What was in issue in parliament, it seemed, was the virility and = machismo of the Kenyan male. It seemed that our representatives were telling us that uses against women, like the one In question, did not matter whether they happened —e or outside the country. In fairness to some N1Ps there were cries of 'Shanie, Shame". What was shameful about this incident was not fully articulated. Was It the act of indecent exposure in a foreign land? Or was it the natIonal embarrassment suffered? It is unfortunate that parliament left us guessing on these vital matters.

The diplomatic pact should have been challenged. Why should two countries that claim to be democracies shelter vital information that was of national importance to both? Were the respective citizens consulted? If they were, why was the husband of the abused woman giving information on the identity of the abuser to the Kenyan Opposition? Why dId the Speaker of the National Assembly allow the Honourable and Learned Stephen KalonzoMusyoka, the Minister of Foreign Affairs and International Cooperation, to refuse to Identify the abuser if the Minister could not cite the standing Order he relied on to refuse to deny or confirm the identity of the abuser? Is it true that the abuser admitted his guilt? In the world of politics are we sure that there were no other interests that were beIng protected? If there had been transparency in this matter, a response from the abuser would be vital. The accuser would also tell us what really happened. Now two countries have unilaterally sacrificed the interests of their citizens at the altar of diplomatic solution. These secretssimply breed rumours and raise the issue of accountability in democracies. Shall we believe that when it comes to women's rights, diplomatic pacts that violate those rights have moral and legal force?

What of the national and international embarrassment that Kenya as a nation has suffered because of this incident? This did not seem to come out clearly as an issue at all. If the Minister for Foreign Affairs will not answer, what about the President? Do not we as Kenyans need to know the truth about this matter? Why are the rights of the citizens of this country taken for granted? In what way is the government accountable to the citizenry if it can ignore public calls to put the issue to rest?

It is important to remember that there are going to be more women NIPs. There will be in the future a lot of issues touching on rights of women that are going to find their way to parliament. We can mention a few: gender provisions in the constitution; reforms on laws on rape (recall Honourable Agnes Ndetei's suggestion on this issue and the brave crusade by Fatuma Anyanzwa); cuLtural discriminatIon; land ownership; bank mortgages; succession; marriage and dIvorce; matrimonial property; discrimination at the work place; wages and house workers' rights; reproductive rights; sexual harassment; sexual equality under the law and the constitution; implementation of international covenants touching on women's rights. Will parliament be sensitive to all these issues?

There is need for parliament, other national institutions and indeed the entire society to nurture a cLilture of gender sensitivity if there are going to begenuine developments in women rights in this country. While women will wage this struggle as they have in the past, the positive contribution of men will reinforce its ultimate su:ces

309 AA9 The Equality Bill 2000: An Alternative Islamic Perspective A DRAFT DISCUSSION PAPER COMMISSIONED BY MUHURI AND KHRC BY ALAMIN MAZRUI

Introduction The Equality BIll 2000 has expectedly generated much debate in Kenya, especially on the status of woman in society. Drafted by the Attorney-General's Office in conjunction with FIDA Kenya. the Bill is intended to "promote the welfare of all Kenyans and to outlaw discrimination based on gender, race, ethnicity, citizenship, creed, marital status, disability, family status, sex age or colour" (p.5). The strongest reaction to the document has probably come from sections of Kenya's Muslim population. Thir objections have centered mainly on the marriage divorce and inheritance clauses of Part 11, Section 3 of the Bill which provides that:

Every person is entitled to equality with respect to the following without discrimination on any of the prohibited grounds:-

Acquisition., change or retention of nationalIty and change of domicile;

\ccess to financial credit without requirement for guarantee by a spouse;

Rights and responsibilities during marriage and its dissolution and in all partnerships and unions;

Distribution of property acquired during marriage:

Inheritance

And as stated earlier, "the prohibited grounds" include gender, race, ethnIcity, citizenship, creed, marital status, disability, family status, sex, age and colour, even though the Bill has clearly been formulated primarily to protect women against discrimination.

Islam supposedly permits polygyny, invests the unilateral power of divorce in men and endorses the unequal distributIon of inherited wealth between the sexes. Muslim opponents of the Bill, therefore, regard parts of it to be in contravention of the lslamic law on marriage, divorce, and succession as currently provided in Kenyan law under the so-called Mohammedan Marriage, Divorce and Succession Act. It is also deemed to be in violation of the constItutional freedom of religion. In the words of Abdulrahrrian hWandati, the Executive Director of the Muslim Consultative Council, "The Bill will ourit to a gross abuse to the fundamental rights of Muslims in Kenya to be Muslims guided by the Islamic legal code on matters of personal law" ("The Equality 310 Bill 2000: What does it portend to the Muslim Community in Kenya? Paper presented at the FIDA Consultative Workshop, Field at the Holiday Inn Mayfair Hotel, Nairobi, September 29, 2000). To what extent, then, is Wandatis positIon vindicated by islam? In what fOlLOWS fr 1 shaLl attempt to present an alternative Islamic reading of the Bill, in particular, and of the rights of women in Islam, in general.

A Question of Paradigms? It should be emphasized, however, that whatever one might think of the central arguments of the school militating for an Islamic mode of human rights, their protestations raise fundamental questions about the substance of law in Africa and the process of its enactment. In the quest for democracy, equality and liberty is Kenya, for example, relyIng too excessively on Eurocentric paradIgms from the West? There is evidence in the Bill that, in line with the western tradition, it has put tremendous emphasis on the material at the expense of the spiritual, ignoring that wholesomeness that is characteristic of both islam and tradItionM African societies. More arguably, perhaps, the Bill also veers towards Christocentricity. This bias is partIcularly noticble in the exemption for religious bodies provided in Part Ill, Section 19 of the Bill:

This Act shall = apply to:

the ordination or appointment of priests, ministers of religion or members of a relIgious order;

the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order; or

the employment of persons in any school, college or lnstItutIon tinder the direction or control of such a body being employment of persons in a manner that conforms with the doctrines of that religion or is necessary to avoid injury to the religious feelings of the adherents of that religion.

In spite of the seeming religious inclusiveness of the clause, its language and substance clearly indicate that it is intended to accommodate the sensibilities of Kenyan Christians yet unprepared to see female priests and mInisters in their midst. This does not mean, of course, that the Muslim community has fared any better in providing opportunities for the emergence of women's intellectual and religious leadership within Islam. strongly rooted in patriarchal structures, both these religious establishments have been guilty of marginalizing women. But, in this particular instance, the exemption in subsections (a) and (b) above clearly caters more exclusively to the Christian establishment. And as regards subsection (c), it is also Christians who control the 22 largest majority of modern institutions of learning owned by religious associations. az Muslims are bound to wonder, therefore, if the Attorney General would have givei equal consideration to exempting Muslims from sections of the Equality Act if such sections were to be shown to be injurious to the religious feelings of the adherents Islam.

311 In short. Muslims are suspicious of both the EurocentricIty and Christocentricity seemingly inherent In the Bill. All this is happening In a climate in which Muslims have been discriminated against in Kenya, purely on grounds of religious affiliation, - In matters of citizenship, passport and identity cards. And they have had to wage the struggle against such discrimination without a single voIce of support from other religious quarters.

Furthermore, in the process of Inscribing these important principles of democracy, equality and liberty, there isthe problem of (re)presentation, of who has the rIght to speak for whom. It may be true that the greatest Muslim opponents of the Bill are men: They (including the present author) should certainly not venture to speak for the Muslim woman. She has her own voice which must be allowed to be beard! But does the non-Muslim woman have any greater right to speak for the Muslim woman? And does not the omission of socioeconomic class as a "prohibited ground" for discrimination betray the class interests of the women pioneers of the Bill and their desire to speak for the more disadvantaged and more exploIted sections of the community of women? To the extent that Kenya's official languge and language of power, English, is still predominantly a medium of the educated elite, does not the omission of language as yet another prohibited ground for discrImination further testify to the class position of the women Involved in draftIng the Bill? Perhaps the process of law enactment in Kenya needs to be more democratic and more inclusive.

In the final analysis, there is need in Kenya, in Africa, for creative constitutional engineering and a significant paradIgm shift in constitutional makIng in the direction of greater sensitivIty to African realitIes. Otherwise, African constitutions will continue to suffer from the serious gap between the letter of the law and the legal culture of the populations that the law seeks to serve.

Having made this necessary diversion let us now return to the EqualIty Bill as it relates to the Muslim woman in Kenya. A natural point of departure would be the place of the woman in Islam and especially in the Qur'an, the Muslim holy book. And it is to this latter consideration that we must first turn.

Woman in the Qur'on The Islamic vision of human creatIon is one that has regarded man and woman as different, sOmetimes separate, but equal and co-existing forms of a sIngle reality. "We have indeed created you from a single soul/essence." (Chapter 4, Verse 1) and "of all things [arising from it] we have created them in pairs," (Chapter 5 1, Verse 49), so proclaims the Qur'an. Thus the one (the female) is not seen as a derivative of the other (the male) - as in the Biblical tradition of creation. In inscribing the principle of duality in the act of creation, therefore, Islam rejects the implication that the woman is somewhat a junior partner of the human race. Furthermore, the Qur'anic version of events in the Garden of Eden (e.g. Chapter 7, Verse 21), to the extent that it equally both Adam and Hawaa (Eve) for disobeying the covenant with Allah 312 avoids the Greco-Roman and Judeo-Christian allusion that the woman was somehow the cause of evil and damnation.

The overriding Qur'ank principle, in fact, seems to be one of total equality, of total freedom from dIscrimination on the ground of sex (as well as on grounds of race, ethnicity, and other physical determinations). As the Qur'an itself puts it:

We created you male and female and have made you nations and tribes that you may know one another [ie. as emblems of identity and no more]. Indeed the most noble of you in the eyes of Allah is (s)he who Is most upright (in conduct) (Qur'an, Chapter 49 erse 13). in other words, Allah does not distinguish on the basis of class, race, nationality, sax etc., but on the basIs of Individual conduct alone. And it is on this fundamental principle of equality that gender considerations in all other contexts in Islam must be analysed.

It is now well documented that women in pre-Islanhic ArabIa were more like property than persons, notwithstanding occasional -cases in which they acted as independent agents. Islam drastically elevated their status as human beings, as wives, as mothers and as members of society at large. islam moved women closer to equality with men. But, in its more specific sanctions, did it stop short of full equality, in contravention of its own more general Qur'anic provision? Here we come to the problematic questIon. of Interpretation.

The Matter of Interpretation Islam was initially revealed to an Arabian people strongly rooted in a patriarchal order. This order is generally defined by a culture and structures of domination and subordination where the male and the male experience are considered the norm. In a patriarchal dispensation the reference point for women is established In terms of their utifttv to men - featuring, in particular, the attributes of sexualIty and reproduction. For the greater mission of the religion, Islam was pedagogically inclined to accommodate aspects of this order and its patriarchal tendencies. And for the same reason of the necessity of sowing spiritual seeds in an otherwise barren land, Islam often - though not always - preferred a gradualist rather than abrupt approach to reform.

The question of gradt.cal reform is amply demonstrated by the islamic irilunction against alcohol. Pre-Islamic Arabians used to consume alcohol freely, and this practice continued into the first few years of islam. When the Qur'an finally commented on lt fr it was only by way of prohibiting the Muslim faithful from approach1ng" their prayers in a state of intoxication (Chapter 4, Verse 43) They could continue drinking; but they were also required to ensure that they were hot drunk when engaging in prayers to a point of being uncorisdous of their deeds and pronouncements. It was only later after that the Quran imposed a complete ban on the consumption of aicoho beverages and other intoxicants (Chapter 5, Verse 90).

313 Patriarchy is, of course, still very alive and kicking the world over. As a result interpretations of Islamic doctrine over the years - all by scholars and jurists who were male - have started with the presumption that Islam's accomniodatIonist orientation at its point of first revelation amounted to an endorsement of the patriarchal order. Thus Islamic pedagogy, justified by the prevaNing conditions at its founding moment, became confounded with the substance of its message.

But if the wider, universalistic principles of the Qur'an are to be understood in terms of their ultimate intent to promote harmonious, just and equitable relationships and order in society, then the focus must be on the spirit, rather than merely on the letter of islamic doctrine. There is today a wide range of Muslim scholars who have used the notion of the t'spirit of the Qur'an' to argue against a literal reading of certain Quranic verses. And only by recognizing the spirit of the revelation and accepting its vision and ultimate intent can Muslims develop a comprehensive understanding of the Book. This means that, in examining the Qur'an, we must always seek to determine the rationales and objectives of its statements, of its silences, and of its commands and prohibitions.

To arrive at the spirit of the Qur'an there must first he renewed commitment to ijtihad, to the intellectual striving for justice, truth and enlightenment. This process requires that the Qur'an is continuously read against the backdrop of its hfstorfca I context and (re)interpreted in relation to present context. indeed, the universality of the Qur'an resides precisely in its inhereth power to respond justly and equitably to a variety of contexts across the global space and historical time. And it is through this imperative of contextualization, founded on the spirit of the Qur'an, that some Muslim countries have taken the step to institute new legal and social reforms, especially on the condition and status of women.

How, then, does the spirit of the Qur'an relate to the Equality Bill on the issues of pblygyny, divorce and inheritance?

Polygyny in Islam Polygyny is perhaps one of the most abused practices in much of the Muslim world. Multiple marriages are freely contracted at men's whim, with lust rather than family welfare as its overriding motive. Yet, the Qur'anLc position on the matter is quite clear-.if you fear that you will not deal justly with the orphans, [then] marry women of your choice, two, three or four. But if you fear that you will not be able to deal justly (with them) then only one ... to prevent you from doing injustice. (Qur'an, Chapter 4, Verse 3) The verse essentially provides men with the freedom of choice to have multiple partners at the same time, to a limit of four. But that freedom is circumscribed by two fundamental condltons: The polygynous union is intended to enhance justice for and lair dealing with hans who have been adopted by new families following the death of their h 314 fathers. It seeks to provide a solution for guardians entrusted with the wealth of orphaned children but who feel unable to ensure the just management of that wealth, especially in relation to their other more biological chIldren and their mothers. And the recommended arrangement is that of marrying the mothers of the orphans who would then take responsIbility for the management of the affairs of theIr own biological children. This context of the verse on just dealing with orphans is often ignored by proponents of polygyny.

2. The polygynous man himself is capable of dealing justly and equitably, in all aspects of marital life, with all his partners.

With regard to the second condition, most commentators agree that maintaining equality and iustice, comprehensively, between one's spouses is an impossible task, considering human limitations. As a result, the spirit of the Qur'an has generally been seen to be inclined towards monogamous unions.

It is important to reiterate here that Islam does not require polygyny; it simply permits it under certaIn conditions. It is a limited freedom for men and not a dLity. If the Equality 8ill implicitly advocates monogamy, then, it is quite in accàrd with the spirit of the Qur'an. The question then is whether Kenyan Muslims themselves, and Muslim men in particular, are ready, collectively, to exercise their restricted freedom of choice in the preferred direction of the monogamous spirit of the Qur'an.

In 1961, Pakistan, a predominantly Muslim nation, passed the Muslim Family Laws Ordinance with the fuJi backing of its leading religious scholars. Section 6 of that ordinance provides the following:

(I) No man, during the subsistence of an existing marriage, shall, except with the previous permission in writing of the Arbitration Council, contract another marriages nor shall such marriage contracted without such permission be registered under this Ordinance.

(2)An application for permission under subsection (1) shall be submitted to the Chairman in the prescribed manner, together with the prescribed fee, and shall state the reasons for the proposed marriage, and whether the consent of the existing wife or wives has been obtained thereto.

(3) On receipt of the application under subsection (2) the Chairman shall ask the applicant and his existing wife or wives to nominate a representative, and the Arbitration Council may, if satisfied that the proposed marriage is necessary and lust, grant, sub lect to such conditions, if any, as may be deemed fit, the permission applied for.

Are Muslims in Kenya ready to accept at least this milder, PakistanI option? One source of concern for Kenyan Muslims, of course, would be the constitutIon of the Arbitration Councih Who constitutes it and how Is it constituted. Kenyan Muslims already dissatisfied with the manner In which some kadlits in the country hay

315 appointed, leading to fears that the government somehow intends to undermine the integrity of the kadhis courts. Can the Kenya government be trusted to deal faIrly with its Muslim population in the institution of any other judicial and quasi-judicial structures?

Divorce by Repudiation Divorce is the most disapproved of the permitted practices in Islam; but, like polygyny, it remains as one of the most abused by Muslim men. By the mere performative pronouncement of a man to his wife, "1 divorce you," in the presence of a fixed minimum number of witnesses, the marriage can be considered dissolved. This power of divorce by repudiation, without a concomitant requirement to show cause for the action, is invested exclusively in the man. A woman who seeks divorce, on the other hand, must obtain a judicial decree from a kcidhi, and the process obliges her to present one or more among specified grounds for seeking the dissolution of the marriage.

At the same time., however, the Qur'an enjoins men to enter into marriage with womcr on eqtitable terms and, similarly, dissolve theIr unions with women on equitable terms (Qur'an, Chapter 2, Verse 23 1). This equitability of terms is in reference to substance as much as to procedure. And who is best placed to judge whether the terms of divorce are genuinely equitable than an independent third party, like an officer of the court? Against the backdrop of this verse, and bearing in mind that the Qur'an does not oblige that men should have unfettered power of divorce, Islam provides room for an alternative arrangement that eliminates the male practice of divorce by mere repudiation.

Here again Kenyan Muslims can perhaps borrow a leaf from yet another Muslim country, Malaysia. Malaysia requIres a couple that is experiencing marital problems to first appear before a court to present their complaints. The court may then seek to arbitrate between the two or, if absolutely necessary, take action to dissolve the marriage. And this legal reform has been considered to be in perfect conformity with the Qur'anic spirit of promoting equitability of terms at the point of marriage, divorce or arbitration.

The Law of Succession The Islamic law of succession is perhaps the most sensitive to reform, partly because

12 the broad mathematical formula used in matters of InherItance is so prominently laid out in Chapter 4, Verses 11-12 of the Qur'an. The seemingly "Inequitable" section of the formula is the one that apportions less to women than to men, with men sometimes getting as much as twice the share of women. This disproportionate distribution between the sexes, however, must be placed in its wider context. First, the responsibility of earning livelIhood for the family has been placed exclusively on the shoulders of in this case, the father or the husband, In the absence of a father, the brother es fully responsible for a woman's maintenance. After marriage. It is the husband required to provide the wife with food, clothing and shelter and to meet her L 316 other necessary expenses, all within his means, of course. It is also the man who is to pay the dowry, which can rise to virtually any amount. In old age, and in the absence of a husband, it is her male chiLdren who must provide for her material needs. And whatever the woman earns and acquires over the years is supposed to be exclusively hers to keep.

Against the above backdrop, it is possible to justify the lower proportion of women's inheritance on the grounds that not only is the man - as father, husband, brother, son, paternal uncle - the family's provider, but that what is man's belongs to the woman also, whereas what is woman's is hers alone. As a result, women in a number of Muslim societies have been known to own more in real estate, for example, than their male counterparts.

The situation that has unfolded over the generations, however, raises several problems with regard to this original justification for the sexually disproportionate distribution of inherited wealth. First, there are very many men who do not even attempt to fulfil their material responsibIlities in the manner provided by Islam. Material teglect of women and children abounds and, in many Muslim communities, there are no established structures to enforce this Islamic regulation.. As a result, there are Innumerable numbers of cases where women have to play the role of family provider - for their aged parents, for unemployed siblings, for jobless husbands. And there are cases, of course, where the female children are the only children and have no option but to look after their aged parent(s) if they cannot provide for themselves.

Secondly, the material responsibilities placed on the shou Iders of the men have proved •.Ao be an area of gross abuse. In many Instances the provision, whether fulfilled in practice or not, has been used by men to demand and exercise undue power, authority and control over the lives and bodies of women, leading to marital relationships that are less than equitable and harmonious in practice. In other words, the provision has become a convenient part of a legitimating ideology intended to reinforce the patriarchal order and patriarchal relatIonships within the domestic space and beyond.

In addition, new economic pressures, precipitated by both local and global conditions, are increasingly making the requirement that the man be the sole provider for the family practccally untenable. Men and women now have to join hands to ensure adec1uate material welfare for their families and their dependents. Indeed, a substantial proportion f households are already headed by women, and an even larger proportion relies on the woman as the primary family provider - the discrimination of women in the job market notwithstanding. A growing number of households are also becoming dependent on the joint earnings of husband and wife. Whether they warn it or not., economic dcstiny has imposed on women the necessity of earning a living and of providing for the family, singly or in tandem with the men of their households.

Certainly, the spirit of justice and equality in islam cannot be blind to these new realities. Where the gender imbalance in the IslamIc law of inheritance uAw b equitable and just in a particular context in time, it can no longer uphold these pr 317 adequately today. Does not islam now make it mandatory on us to reflect afresh on the spirit of the Quranic provision on inheritance and reformulate the law to better uphold the requirements of Iustice and equality in the new enironment? Does not the full extent of the Qur'anic provision itself require recurrent consideration of other details which might necessitate a redistribution of the inheritance, taking into account the circumstances of both the deceased person and the inheritors?

Conclusion What I have attempted to do above i5 provide an aiternative reading of the Islam doctrinal position on the question of polygyny, divorce and inheritance, based primarily on what I understand to be the spirit and intent of the Qur'an. And this focus on the spirit" and the essence" can lead to a new and, I believe+ a more Islamic understanding of the rights of women in Islam. in this way,, the Muslim community in Kenya can contribute to the debate on the Equality Bill not as its antagonists but as pioneers of a genuinely just formula inspired by the inner message of the Qur'an.

One of the most important foundations of Islamic civilization has indeed been the call to ijtihcd, the constant intellectual striving for the truth to enhance our understanding of the message of Islam, and to consolidate the pillars of justIce and equality in human relations. It is through ijtihad that the Muslim world once became the torchbearer in world civilization, and it is partly because of the abandonment of that same spirit of ijtihaa that Muslims eventually lost that leadership status. Should Kenyan Muslims now accept the challenge provIded by the Equality Bill to rekindle the spirit of ijtiIwd? Our serious engagement with the woman qLlestion in Islam could be an important beginning of a global movement of Islamic reformation and renewal towards a new Muslim world order.

I I

hb. L 318 I

6. U.S F Policy Powell and New US-Africa Policy MAKAU WA MUTUA

Recent news accounts suggest that General Cohn Powell, the first American of African descent to become Secretary of Statek has exhibited an unusually great interest in Africa. That is a welcome surprise provided General Powell uses his enormous power and daunting personal prestIge to completely re-write the callous and harmful assumptions that have led to a horrid US-Africa policy. This potential is so seductive that I want to caution my allies on the American left against a knee-jerk dismissal of PowelL

General Powell may face Sisyphean challenges if he decides to fundamentally alter the bask premises of US-Africa relations. He will be confronted with a long queue of chilling and unmentionable historical wrongs. One of these is slavery, which Ironically brought Genera] Powell's ancestors to the Americas. But the more recent ones are no less immoral and unacceptable. American military, political, and economic support for brutal and repressive cold war dictators who laid waste to their own countries is a matter of public record- Think of US support for President Mobutu Sese Seko and General Samuel Doe, who turned the Congo and Liberia., respectively, into wastelands that haunt the human conscience,

In South Africa, the Reagan administration openly defended Apartheid, a crime against humanity. It orchestrated and nurtured Jonas Savimbi's UNITA, the savage Angolan rebels, perversely referring to them as freedom fighters. Nor has President Clinton been blameless, despite his two highly positive trips to the continent. In 1994, the United states stood by as genocide was committed in Rwanda. On his.trip, Mr. Clinton apologized for America's inaction, although inexplicably his administration has supported the Rwanda minority Tutsi government which is pursuing a genocidal policy towards the majority Hutu.

But Genera] Powell can end this historical cycle of cynical policies. Press reports Indicate that General Powell is concerned about another Hutu-Tutsi conflagration in Rwanda and Burundi where undemocratic minority Tutsi governments repressively rule the Hutu majority. Uganda., under President Yoweri Museveni, the regional American policeman, provides critical support to both regimes. Rwanda and Uganda, with support from Burundi, have impermissibly occupied the eastern regions of the Democratic Republic of Congo and fueled a senseless rebel var. This conflict has erupted into a full-scale regional war with Zimbabwe, Naniibia, Angola, and Chad supporting the late President Laurent Kabila of the DRC. Now they have thrown their Jupport b ehind his son and successor, Joseph Kabila. .

resolution of this conflict should be among General Powell's priorities, otherwise genocide in central Africa is inevitable. President Kabila, unlike his father, 320 may be more Inclined to honor the peace accord signed in Lusaka. But first the US must withdraw its support from the Rwanda and Burundi Tutsi minority regimes and demand that they and Liganda leave the DRC. Secondly, General Powell should work with African leaders to find a lasting solution to the Hutu-Tutsi conflict. A partition of the two groups, though difficult and perilous, remains the only viable solution.

But General Powell should be guided by several broad principles in crafting a new Africa policy. First and foremost, he must recognize that it is in America's national interest to nurture a conflict-free and prosperous Africa. It is not possible to compartmentalize Africa's crises. From refugee flows due to conflicts or failed economies to the collapse of heath care systems and the danger of disease, we now live in a global village where our fortunes are Interconnected. Misery in Africa will no doubt be felt in the West. Secondly, a peaceful and prosperous Africa can only strengthen the global economy, which the United States leads. Finally, the UnIted States should not just pay lip service to the rhetoric of a common humanity, it should show its moral responsibility in helping foster a more habitable world, particularly in Africa where it has played a historically negative role.

From these basic princIples. General Powell should engineer a US-Africa polIcy that rests on four legs. First, American policy should be driven by engagement with several key and select countries that anchor the five regions of the continent, in southern Africa, these should be South Africa, Angola. and Zimbabwe; in eastern Africa, Kenya, Tanzania, and Ethiopia; in central Africa, DRC and Uganda; In western Africa, Nigeria, Ghana, Senegal, and the Ivory Coast, and in northern Africa, Egypt and Algeria. By population, size, resources, and political potential, these clusters of countries should rationalize US-Africa relations in economic, military, and political matters.

The second leg of this quartet must be sound economic policy. The US should not see Africa simply as a reservoir for raw materials or a recipient of aid. The strength of African economies must drive policy. But this cannot happen unless African states are freed from crushing debts that were advanced by the West to corrupt and waste cold war darlings. The funds never went to development but instead lined the pockets of the inept elites. Now the ordinary Africans are paying for these excesses. These debts must be forgiven if African economies are to be jump-started and infrastructure developed. Only then can fair trade and equitable investments make a difference.

Thirdly. the UnIted States should allow the voice of Africa to be heard in international institutions, particularly at the World Trade Organization, the World Bank, and the = International Monetary Fund. These key instruments of global trade, financial and monetary policy have been opaque and undemocratic to Third World nations, and particularly Africa. Opening them up to the concerns of African nations would begIn to address.the rnarginalization of Africa.

Finally, the United States should foin African nations in the eradIcation of slavery in Sudan and Mauritania, helping build capacity for more open and democratic societi and leading campaigns to combat the AIDS pandemic across the continent. G 221 Powell disappointed many Africans and African-Americans because of his support for the Republican Party and Governor George W. BUSh, both viewed as hostile to the interests of Africa and African-Americans. But General PowcU can redeem himself by leading a renaissance in US-Africa relatIons. This and not the Gulf War should be his lasting legacy.

ILL, 322 The Clinton Scandal: Lessons from an Open Zip MUGAMBI KIAT AND WillY MUTUNGA

His face solemn, his voice contrIte, it was an apologetic William jefferson Clinton who faced the world right after the•attempt to impeach him backfired badly on his Republican interlocutors. And his words conveyed that same message when he said, "I want to say again ... how profoundly sorry I am for what I said and did..."

It is moments such as this that force one to longingly reflect on how much Kenyans miss such candour from our leadership. For our memories, long or short, of the local political scene seldom evince any records of apologies for wrongdoing or Impropriety from our leaders; indeed, those who ask- pointed questions in that dIrection are the ones who are invariably accused of all manner of ills. And if they persist further, they are answered with the rungu: a classical characteristic of the hard-nosed practice of herd control that is now Kenyan democracy, where the non-conformist black sheep in the flock must be flogged.

At this point in time, it will be important for Kenyans to reflect on what lessons can be drawn from the Clinton scandal. For in this era of constItutional reforms, we need to tease out as many social and political lessons as we can from whatever source. With the Clinton impeachment hearing concluded, there are indeed some lessons for the ordinary Kenyan mwanancM to draw.

One is the role of the proper checks and-balances to executive powers. This is an area that Is currently targeted for constitutional reform because of the gargantuan powers enjoyed by the presidency In Kenya. Indeed, so Immense are these powers that they once led a well-known Keriyan scholar to mistakenly pronounce, in the twilight of sirigle-partyism, that presidential powers are derived from the charisma of the president, rather than the Constitution. And, In .1991, In his maiden speech to Parliament, Attorney-General Amos Wako said that, "[A] characteristic of the rule of law is that no man, save for the President, fs above the rule of law."

This phenomenon of a near-omnipotent presidency is not a creature of happenstance. For it is the product of the continuous and deliberate manipulation of power by the polItical elite resulting in the near-convergence of Kenya's nationhood in one office. = See, for example, the followIng statement made in April 1968 by former Attorney- General Charles Njonjo. "Our most cherished Institution is the Presidency and our most beloved citizen is the first holder of that office, Mzee Jomo Kenyatta. No one ... is more imprtant to the peace and prosperity of our country than our President."

There is hardly any dispute now as to the need to trim presidential powers. At one of the Safari Park meetings preceding the amendment of the now badly tarnish Constitution of Kenya Review Act, President Moi surprised the audience by con

323 that the powers of the presidency needed proper checks. What is not clear, however, and needs our collective suggestions is what kind of checks will be instituted. For example, there Is no provision for the impeachment of the President of Kenya. What comes closest to this here Is the parliamentary vote of no confidence, as was exemplified by James Orengo's failed attempt to garner one last year. The problem with the vote of no confidence in Kenya is that if it succeeds, the President can dissolve parliament. This means that parliamentarians are sacking themselves if they pass a vote of no confidence against the government. In contrast, with Impeachment, the President would be forced to resign without drawing anyone else into the quagmire.

Further, as the Clinton saga shows, it is possible in the US to sue an incumbent President, which is not a right enjoyed under section 14 of the Constitution of Kenya, which provides legal immunity for the holder of the office of the President and has been interpreted very narrowly by the courts here.

And then there is the office of the independent prosecutor in the US, which of course is totally absent in Kenya. Even though there was a successful parlIamentary motion last year to introduce the office of ombudsman In Kenya, there Is still no independent institutional offIce to monitor and check presidentIal excesses. Indeed, it Is extremely difficult to get a word in, however justified, against the presidential excesses. One recalls the almost comical situation in Kenya's parliament a while back when the Speaker decided to re-engineer a report from the Public Accounts Committee by expunging the word "President" and replacing it with "the government".

Another lesson that one can glean from Clinton's tribulations is one of morality. This is at two levels. Firstly and at a general level, the knee-jerk answer used to brush off the question as to why Clinton would mislead society on his relationship with Monica Lewinsky has been that we all lie about sex all the time; when we have it and when we don't. This Is most likely the reality. Indeed, Bertrand Russell made a Stinging observation of morality in society when he noted that, "We have two kinds of morality side by side one which we preach but do not practice and the other which we practice but seldom preach." But true as this may be, it is seriously flawed as a standard. For how can we trust each other even at a very basic level If this is the yardstick of our morality? Doesn't this mean that our morality is only skin-deep?

And what of the morality of the political class, as another moral issue? Cjiven that they are vested with so much authority, to what standard we will hold them accountable? If we took Nilcita Krushchev at face value when he stated that, "PolIticians are the same all over. They promise to build a bridge even when there is no river," it would mean that politicians would not be accountable. Indeed, it could be used to rationalize, for example, the case where the Kenyan government can promise to give the teachers salary increments, later renege on this and then proceed to use the rod unsparingly when the teachers protest this betrayal. How awfull

ton's story also posed a gender question. While conceding that this was an extra- lpeccadillo between two consenting adults, it must be put in the context of L 324 gender relations, which are essentially about power. In this case, we had the world's most powerful leader cavorting with a girl who could well have been his daughter's classmate. This fact alone should have kept Clinton away from Monica because he had a moral duty of care to. her In these circumstances, her being above the age of consent notwithstanding. For being above the age of consent alone is morally unacceptable as a license to enter into a harmful emotional relationshIp with a weaker party. In retrospect, it is hoped that this point is clear to Clinton and any other man or woman in an equal position.

At its extieme forms, this lopsided power relationship ends up in sexual harassment or rape. And with the international community recently accepting - in the case against Jean Akayesu for crimes against humanity in Rwanda that rape during war is a crime against humanity, it is hoped that rape will be further elevated to be a crime against humanity not only in war, but in all other forms of human conflict, such as politIcal clashes.

One of the most prominent actors in the whole Clinton story was the ipress. The fourth estate reported, insinuated, second-guessed, pre-empted, predicted and did anything humanly possible with this story. Indeed, it caused quite some fatIgue in some quarters. However, in Africa where we are used to sirikuli, this domination by the press was refreshing. Not long ago, in Robert Mugabe's Zimbabwe, the journalists who exposed Mugabe's affair with his secretary (now wife) were vilified and jailed for this. In Kenya, where informal repression through the use of private armies is fast becoming a high-growth industry, David Makali, the editor of Expression Today, was recently the victim of a bizarre kidnapping and beating for exposing those in the drug trade in Kenya, which, quite clearly, has the blessings of very well-connected people. As these examples show, the freedom enjoyed by the press in the US is still a faraway dream in Kenya.

Looking at the relationship that wananchi in Kenya have with their elected representatives and the one between the representative and citizen in the US1 the Clinton case provided further justification for the position that the determination of any critical constitutional question should never be the sole preserve of the politician. For In this case, the majorIty in Congress and the House of RepresentatIves, being Republicans, wanted Clinton impeached. Not so the general population, who rebuffed them by handing the Republicans a telling midterm election defeat, which led to the resignation of former House Speaker Newt Gingrich. in Kenya, there is the issue of the tussle in the municipal council of Mornbasa, which pitted elected counci]lors against former mayor Najib Balala. The councillors are elected but despite widespread public dismay and outcry, they attempted to terminate Balala's tenure as mayor, at the behest of some corrupt influential tycoons in Mombasa To his credit, Balala rode this storm only to, however, later resign following threats to himself and his family. Again, public opinion was sacrificed by elected representatives at the altar of very parochial personal A Interests. And this shows the colossal harm that would be wrought if Kenyans are leave the constitutional yeview project in the control of politicians.

325 These are some of the serious lessons that Kenyans can derive from the Clinton impeachment saga. To some, It has provided high-voltage entertainment; a highly- rated soap opera that combined such ingredients as sex and power and featured some of the most powerful and riveting actors on the world's political stage. It also has all the ingredients of a best-sellIng noveL But in Kenya we will need to lock deeper than this, and dissect the scandal to derive critical lessons that will help Inform on how to create a moral and democratic constitutional system that is amenable to transparency and accountablilty. For even an open zip can yield fundamental social and political lessons for humanity.

L 1 326 7. International Human Rights Discou'rse Guatemala's Plight MAKAU WA MUIUA

Since t}e United States orchestrated the overthrow in 1954 of Guatemala's democrticaUy elected government in the name of anticommunism - and ki(ed much needed, agrarian reform the military has ruled the improvised Central American nation through terror and the effective exclusion of native Guatemalans from the political process and the country's economic life. But since October, the plight of Guatemala's silent masses has come to our lMng rooms through the televised, month- long hunger strike of lennufer Harbury, the i-arvard-cducated human rights 'awyer whose husband, Efrain Bamaca Velasquez, a Mayan Indian was captured in 1992 and may have beenmurdered by the military, Now the world should literally unearth the skeletons and expose the sins of the callous and racist oligarchy in GuatemIa City. Guatema)as vital statistics are chilling. The tortured and now most likely savage end to aniaca's life is a mirror image of the tragic existence of Mayan's, who constitute 70 percent of the population. Ladirio's, or those of mixed blood. constitute 20 percent and run the military at the behest of a tiny white oligarchy that owns 70 percent of the land. Illiteracy among the natives, who have effectively been disenfranchised and subjected to hard labor on coffee, barrana, and sugar plantations, is more than 60 W percent Life expectancy among Indians is 16 years lower than that of Làdinos. In substance Guatemala is an apartheid state where race and not ability determines one's station in life. it is a strange irony that in South Afric& a country where racism was codified in law, and not Guatemala, indigenous people have reclaimed the birthright of democratic selfgovemance

In a sense, the marginalization of Guatemala's native peoples began with the celebrated arrivaJ of Christopher Columbus. The conquest of Indian civilizations 500 years ago by the Spaniards established The conditions that threaten to wipe out whole races. The struggle by the natives to regain their sovereignty has never ceased It was against these denials of the most basic human rights - what many see as genocide by the military against Mayans - that Bamaca joined guerilia movements seeking freedom from the ethnocraric state. By the 1970s, when Jimmy Carter suspended aid to Guatemala because of its appalling human rights record, the government was pursuing a scorched-earth policy against Indian vilLagers in areas from where insurgent groups operated.

According to reports from human rights organizations, the military indiscriminately pkindered villages and executed at point-blank range thousands of innocent civilians in their homes and churches. Children were snatched from their mothers and hacked todea,0,l in broad daylight. In a country of jO million, one out of every 10 Guatemalans coming internally displaced. Hundreds of thousands became refugees abroad. L the strength of armed insurgents is no match for the military, the cost of the k' 328 war has forced the government to agree to peace talks. While the talks might yield Some positive results for the Indians, it is essential that the fate of Barriaca and the rriany "dIsappeared" not be forgotten, for It Is the commitment of people like him that will in the Harbury-Bamaca case leave a lot to be desired.

The conduct of the United States gives insubstantial aid to the Guatemalan government. It continues to treat the butchers of Guatemala CIty as Its pets.

Last week, hours after Harbury had ended her hunger strike fearing for her health. the US Embassy in Guatemala said it knew that Ba maca was captured alive in March 1992 without any life-threatening wounds and that he was alive several weeks later. All along, administration officials had insisted that they knew nothing about this, but this dIsclosure indicates that they knew more than they let on, yet they let Harbury, a US citizen, endanger her own life to force the government to account for her husband. if a high-ranking official had publIcly supported Harbury, perhaps the Guatemala government would have been more forthconiing.

The media blitzkrieg caused by Flarbury's hunger strike should put Guatemala on the world's human rights agenda. It should serve to focus attention on the nature of the peace talks under way and steps that the government must take to open up the political process and terminate the strangulation of the country by the military.

Key among these must be an end to the racist minority government and the full enfranchisement of natIve Guatemalans. Any settlement that blinks this issue is not worth the name. Although the united States should not be the world's pohceman, its historical support for repressive governments in Guatemala oblIgates it to throw its weight behind a genuine peace agreement. it must also publicly and materially support civil society organizations, the engine of empowerment, particularly within the native population.

SometImes it takes one individual and an act of courage to tell a nation's story. Although many human rights organIzations and individuals have worked to expose Guatemala's abominations, none have been as effective as Harbury. Her actions and commitment to a Mayan remind us of the humanity of the native peoples of the Americas and their subjugation or extermination by European immigrants. it is a story that should spur people to defend and help in the restoration of the dignity of those who tended these lands before Columbus. A plight must not be ignored.

29 11114. Kurdish Leader Cannot Expect a Fair Trial in Turkey MUTUMA RUTEERE

The debacle surrounding the February iS arrest of Kurdish rebel leader Abdullah Ocalan in Nairobi and his subsequent handing over to Turkish authorities has brought into sharp focus the thorny nature of the Kurdish conflict and, iust as important, Kenya's much criticised foreign policy.

Different accounts of how OcaLan was captured by Turkish authorities point to complicity by Kenyan authorities. Time magazine reported that Ocalan was driven out of the Greek ambassador's residence by Kenyan authorities, ostensibly for safe exit, but the Tourney ended up in a police station where Ocalan was handed over to the Turkish commandos, drugged and repatriated. The Middle Enst Internqtioni1 reported that the U.S demanded that the Kenya government hand Ocalan over to his enemies. Greece was playing two games with the U.S. - they wanted the man out of their hands and would have wished to ease him into the safety of South Africa but the FBI was on the look-out.

Greek authorities have been criticised for complicity in the captLlre of Ocalan by bringing him to NaIrobi, a destinatIon that was far from safe as it was infested with the FBI agents still prowling for leads over the deadly August 7 bombing. The FBI even took pictures of the Kurdish leader inside the Greek Ambassador's residence. it was as the Americans learnt that Greece was to give Ocalan safe passage to another country that the demand was made on Moi to move fast and he agreed.

Sources say when Foreign Minister Bonaya Godana rattled out a press statement abut how the Kenya Government was angered by the smuggling of the Kurdish leader into the country under the diplomatic cover requested by the Greek Ambassador, and that Kenya had asked that he be taken wherever he must go," he was only telling half the story.

Ocalan's entry was not such a mystery. He landed at the Jomo Kenyatta Airport and was given a safe passage through the Embakasi base from where he was picked. Long serving Principal Immigration Officer Francis Kwinga must know he was sacrificed for spilling the beans of the cover up.

For over a decade1 Kurds who occupy the south-eastern region of Turkey have waged an armed struggle for the recognition of a separate Kurdish state and the respect of lihguistic and cultural rights. A state of emergency declared in 1 997 hangs over six stern provinces. As the 1998 U.S. State Department Report notes, the Turkish ment "has long denied the Kurdlsh population who reside in the South East cultural and linguistic rights." The Turkish government has for long waged a SoLrn 330 scorched earth policy against the Kurdish population, leaving nearly 2 million Kurds thsplaced and 25 niilliori exiled all over the world. Kurds are a nation without a state."

Speculation that Ocalan might be the victim of international political wheeler-dealing finds merit in the geopolitics of the region. Greece and Turkey are tradirionaJ enemies with long-standing hostilities over Cyprus. Turkey is the sole global sponsor and recogniser of the Turkish republic of Northern Cyprus while Greece sponsors the Southern half. For years too, both Thrkey and Greece have been jockeying for US support and attention. Turkey has a military alliance with Israel and is looked upon by the US as a bulwark to Islamic fundarnentalism

The mystery of his arrest aside. Ocakrn's repatriation to Turkey brings into debate of his fair trial and the human rights record and performance of the Turkish government. This is a record the Turkish government would rather remain unexplored as it bespeaks of a state that has scant respect for all human rights, The Ttwkish authorities, in gloating over Ocalan's capture, have been quick in their response that Ocalan is a baby killer" and a mass murderer in the league of Pal Pot.

Now, there can be no apology for the heinous crimes committed by Ocalan's Kurdish Workers Party (PKK'). Since the outbreak of a violent Kurdish struggle over 15 years ago, the PKK has been responsible for kidnapping of journalists, press control by death threats, execution of prisoners and mass murder on wholesome villages Less than sympathetic to the PKK.

These are crimes easily rationalised by the supporters of Abdullah Ocalan as the expected cost of any struggle. And it had been regularly used elsewhere before.. it, however, bares inspection that while human life is often a price in defence of liberty, destruction of life in the name of liberty Is often a subject of moral controversy. And in the broadening human rights vision, acountabiIity for human rights violations Is also demanded of non-state actors like the PkK in Turkey. The Turkish government, therefore, stands largely responsible for the slaughter, the horrifying brutality and the daily death march that human hfe has become in the country.

For Kenya. the Ocalan affair presents yet another puzzle for observers of her foreign policy commitments. In the past, Kenya's foreign policy has wavered between sympathy to Jiberation movements best espoused by the non-aligiied movement, an amorphous grouping of developed countries committed to redressing the north-south imbalance and liberation of the colonised people of the world. Under a policy safely referred to as "COnstrCVive agreement," kenya has demonstrated sympathy or offered support for the Independence struggle in Narnibia, dabbled in the costly Mzambican civil war by supporting Alfonso Uhlakamas Renamo, provided safe haven to and material support to John Garang's Sudanese Peoples Liberation Army fighting the Islamic government in Khatourtn and lately, Laurent Kabila in Congo. 42 While this pattern would seem to suggest an attempt to identify with the oppress peoples of the world, the handling of the Ocalan affair means that Kenya's fo

331 policy is dictated by either the security considerations of the United States and its western affies or political vicissitudes of the moment. I-Ia rdly principled and long term commitment to a vision of her place in the world politics.

i I

IIFIIIIIIII. 332 Memo to the International Human Rights Movement on the Murder of Father John Kaiser on the Night of August 24, 2000

Father John Kaiser, a Catholic priest and a cItizen of the uS, was brutally murdered on the night of August 24, 2000. Father Kaiser had lived and worked in Kenya for over 30 years. As a parish priest in the Rift Valley province of Kenya, he became a famous human rights defender. He condemned land grabbing and the murders of workers and peasants through politically motivated and executed vIolence shamelessly called "ethnic violence" in Kenya. He was involved in the protection of women's rights and stood up against the rape of women by powerful politicians. It is known that he helped furnish the evidence that the Federation of Women Lawyers in Kenya has relied onto institute a private prosecution against Honourabie Julius Sunkuli, MP, Minister of State In the Office of the PresIdent. Last year the Law Society of Kenya honoured Eather Kaiser by awarding him its Human Rights Award.

The Kenya Human Rights Commission has for the last eight years monitored, documented and publicized human violations in Kenya. The Commission has also exposed the risks that human rights defenders face and has given them protection where it can. The resistance to the violatIons of human rights still remains the fundamental obligation of the Kenya human rights movement. The role of the internatIonal human rights movement is toreinforce, if it can, the internal struggles of the Kenya human rights movement.

The recent struggle for democracy, the rule of law, the respect for human rIghts and the basic needs of all Kenyans has enjoyed relative success. There is always the danger that these gradual and positIve developments can be clawed back by a state that Is continually becoming infamous for its violations of human rights. Blatant violations of the law and the constitution, torture, murder, rape, insecurity, a collapsing economy, a cowed and dependent judiciary, corruption and compromised security apparatuses have all made the Moi-KANLI regime insecure, frightened and dangerous.

Father Kaiser's death is a reflection of a real danger that Kenya's stabilIty is facing. So is the illegal and criminal siege of parliament by hired goons who kept several opposition members of parliament hostage for hours on August 19, 2000. Private armies are known to exist, and they work hand in glove with the police.

What the Kenya Human Rights Commission wants to bring to the attention ofthe international human rights movement are the chilling messages that the Moi-KAI" regime continues to give to the Kenya human rights movement and its defende

333 Human rights defenders ultimately face death if they persist in their project;

The state does not guarantee the protection of the flves and property of human rights defenders;

The state encourages informal repression as a means of intimidating and denying citizens their right;

The religious groups constitutional initiative called the Ufungamano Initiative and its People's Constitution Commission will never be given a chance to operate, and the state will encourage the subversion of the Initiative's constitutional and legal mandate;

The state guarantees only the rights of the supporters of the ruling party and the political parties that cooperate with the ruling party;

Opposition political parties will not be allowed to exercise their political and civil rights;

The ruling party and its allies in the opposition will solely determine the content Jf the new constitution and the management of the political succession; and

The international community Is totally perfidious, hypocrItical unreliable, racist and cares only about its economic, social, cuJtural, political and military interests. The international community just pays lip service to issues of democracy, governance and human rights. The international community cannot, therefore, be relied upon to resist, even morally, the dictatorship of the regime.

it is important that the international human rights movement focuses serIously on the last message. The Kenya human rights movement is being told that as long as the Mot-KANU regime respects the rights of the International community, as represented by its interests rather than by its people, the movement should not expect any moral support from the International community. Fortunately, one hopes that the international human rights movement is not about to become a front for capitalist interests. The international human rights movement must demonstrate that human rights violations are all over the world and that the movement will resist all states in the world that violate human rights. I

kL 334 The Attacks on the Americans on September 11, 2001: Challenges to the International Human Rights Movements WILLY MUTUNGA

As we celebrate the 53rd anniversary of the Universal Declaration of Human RIghts, I want to reflect with you on the challenges facing the human rights movements the world over In the wake of the attack on America on September 11, 2001. These movements include all national, regional, continental and international human rights movements. More specifically, I address those challenges that, in my view, the American human rights movement must focus on and take a distinct leadership in.

In undertaking this task on an issue that may divide the various human rights movements, I recognize that history records some Important voices that protest in the name of justice, but these voices recorded throughout history are too few. Nazism was evil and was justly fought; so was Japanese aggression and later colonialism and foreign domination of all forms. In challenging the victor's justice after the Second World War, these few voices attacked the bombing of Dresden In Germany, the fire- bombIng of Tokyo and the dropping of atomic bombs on Miroshima and Nagasaki. In a truism we have all come to accept, "two wrongs do not make a rlght" Human rights movements must constitute these few voices of justice. It is in this vein that I urge a discussiàn be undertaken on why the attacks on America took place.

On September 11, 2001, as we all know, the twin towers of the World Trade Centre in New York and the Pentagon in washington, DC were simultaneously attacked by terrorIsts using hijacked planes. The tonnage of the fuel the planes carried rendered these planes bombs, which made these terrorists suicide bombers. Symbolically, the two buildings were the economic and military centres, respectively, of the American super power. It is suspected that the hijacked plane that crashed in western Pennsylvania was headed for a political centre of the American empire, perhaps Camp David or the White House itself.

On November 11, 2001, 1 visited Ground Zero. Ground Zero was still smouldering. Even before I was stopped from taking photographs by the New York Police Department officers, I had become acutely aware of how the American state and the American ruling class perceIved these attacks. Goliath would have seen it the same way if David's stone had left him deeply injured but alive. One could feel the humiliation, the anger, and the call for vengeance in the air.

For East Africans, we recall the simultaneous bombings on the American embassieA in Nairobi and Dar-es-Salaam on August 7, 1998. TWo hundred and sixty-three Africans died, and in Kenya over 5,000 people were serIously injured. Eve 335 suits seeking compensation for the deaths and Injuries from these bombIngs had not yet been resolved when the September 11th attack on America took place. We also have not forgotten that in 1996 suicide bombers hijacked an Ethiopian plane and refused pleas by its pilots to refuel until it crashed on the East African coast of Comoros. We all remember that among the many who perished was the famous Kenyan photo- jouriaIist, the late Mohammed Amin. Indeed, this was the first hijacking of a plane by suicide bombers. Hitherto, hijackers would command the plane to a country sympathetic to their cause (recall the story behind the Entebbe raId in 1976) and make their demands. This style of hijacking changed in 1996.

Following the attack on America (one of the worst one-day massacres in the last decade, rivaled only by the massacres of the first days of the Rwandan genocide of the Tutsis in terms of numbers), the vanous national, regional, continental and international human rights movements took the following measures: the movements expressed anguish about the lives lost in the bombings, invoking the human rights discourse the movements invariably stated that any expression of political opinion by an individual, group or state that is against humanity must be condemned without conditions or reservations; and the movements reiterated that the right to life is fundamental to humanity and that the human rights discourse protects the right to life at all costs. Secondly, the human rights movements declared the murders of innocent American citizens crimes against humanity, making it a must that the accomplices of the dead perpetrators had to be captured and prosecuted in the appropriate courts. International law and international institutions were invoked as capable of handling the matter. The suspects in the 1998 bombings in East Africa were arrested and prosecuted in US courts. They had legal counsel, and after the trials they were sentenced to life imprisonment. What was being urged about the murders of the American citizens of the September 11th bombings, as implied by the Human Rights Watch, was that the US should not commit similar crimes against the humanity of other countries because the world would cease to distinguish the difference between the US state and the terrorists. It was, indeed, implied that if Osama bin Laden and other suspects were apprehended, they should be tried, just like their comrades in East Africa and the Libyans accused of the Lockerbie bombing. Indeed, judicial systems hecome.very powerful when they try, according to the law and legal procedures, those individuals we would want to see dead. The anarchical cow boyish clarion call by President Bush of "dead or alive" has no place in civilized judicial and legal systems.

It is all too apparent now that the second position of the human rights movements. • namely that the surviving perpetrators of the September 11th attack on America be tried in the appropriate courts 1 was not heeded by the US state. While the FBi and other relevant Institutions carry out investigations into the murders resulting from the September 11th attacks on the basis that these attacks were criminal acts, the Bush administration constantly talks of war on terrorism." And even before these Ivestigations have been completed and the surviving perpetrators have been tried by due process of law, the Bush administratibns "war on terrorism" has been declared being waged. Furthermore, the Bush administration has threatened to bomb 236 other countries (perhaps sixty according to President Bush) which support or harbour terrorists. This position taken by the US state seems to reflect Voltaire's paradoxical saying that "to be a good patriot one needs to become the enemy of the rest of the wor]d. -

The Kenyan human rights movement has specifically been drawn into the positions taken by the international human rights movement. Immediately after the September I I th attack, President Mol led a demonstration against terrorism, and a few days later the Council of Iniams in Mombasa led a demonstration against the war in Afghanistan.(The media had incorrectly reported that the latter demonstration was in support of Osama bin Laden. The fact that somebody burned the American flag and another carried a portrait of Osama bin Laden did not make the demonstration pro- bin Laden as the media portrayed. The expressions of the few people who took an anti-American stance have to be protected, too). It is true that the Kenyan human rights movement has not taken a position on the September 11th attack. I think there are several reasons for this: the issue itself was a political minefield; it is also true that there were too many people opportunistically crying with the American empire; and positions on national issues are rarely taken in unison, not to mention regional issues such as the Rwanda genocide, the war in the DRC and the war between Ethiopia and Eritrea. Perhaps the attack on America will be a wake-up call for our embryonic Kenyan human rights movement to our national, regional, continental and international obligations.

There are worrying scenarios in the world as a result of the attack on America including the escalation of xenophobia, especially against Arabs, but also targeting all immigrants. This is not happening in the US alone, There is evidence of xenophobia in Italy, for example. The Northern League (part of the coalition of parties that now govern Italy) has proposed that all undocumented workers should be treated as potential terrorists. The anti-globalization movement has been demonized, and has been accused as the enemy of "western civilization." There have been wide spread restrictions on civil liberties in the US, and debates on similar restrictions are taking place in the UK and other countries. The West seems, after the September 11th attack, ripe for nea-Maccarthyism, Nazism and Fascism. The human rights movements in the West, and Indeed all human rights movements, must be aware of these new challenges. Whatever successes the human rights movements have made in the areas of women's rights, civil liberties (for example the CCC) and other human rights areas are now in danger of being clawed back.

It is also important to reflect on the violations of the rights of women in Afghanistan. Prior to 1992, 40% of the doctors in Afghanistan were women; 40% of the civil servants were women while 70% of the teachers were women The Taliban rule changed all that by denying women their rights to education and to work. The education of women had to be done underground in Afghanistan or in exile on the Pakistan border. Women in Afghanistan are well organized. Yet the Afghani women's movement was not ask to send its representatives to the talks held in Bonn to decide on the future Afgha

337 government in Bonn. Only tokenism was witnessed when two women were chosen who reportedly did not represent the women's movement in Afghanistan. What worries me, however, is the possibility that the case of the women of Afghanistan will be marginalized in the discussions of the ongoing transition in Afghanistan. It seems the Northern Alliance is guilty of similar chauvinism against women as the Taliban. When the UN sets up an International Crimes Tribunal for Afghanistan, as indeed it must, the familiar strategies of margin.alizing the rights of women must not take place. I emphasize this point because I participated as a Judge in the Tokyo Tribunal 2000 which tried crimes against women committed during the second world war by the Japanese Imperial Army. These crimes have been condoned and ignored by the UN and the internatio,nal community since that war. The Japanese governments since then have refused to apologize for the crimes or to pay reparations and compensation to the former "comfort women." International states and organizations are yet to pressurize the Japanese government to do what any civilized government would do under the circumstances. The human rights movements must put the rights of the Afghan women in the forefront of that country's transition government and event9al democratization.

So far, in my opinion, the human rights movements have sought a better understanding of what has happened on September II, 2001, but have not sought an understanding of why it has happened. The human rights movements are yet to respond to why the Bush administration ignores the human rights movements' opposing position on the "war agaInst terrorism" This is an issue that every American citizen is sensitive about. rndeed, attempts to discuss why the attacks occurred are invariably greeted with hostility or accusations that one is condoning or rationalizing the September Ii, 2001 attack. I personally saw reflections of this intolerance while attending an academic seminar in New York last November. I hope President Bush's warning that the world is either with the US or with the terrorists is not being taken literally. The human rights movements should not be intimidated and must analyze why these attacks happened and why America's "war on terrorism" persists. This analysis must take into account all voices. Only then can the human rights movements be able to lead in a world where, i am fully convinced, only human rights dIscourse can offer words of reason, tolerance, peace, caution and of survival for the world.

Let me state a few entry-points into such an analysis. lam convinced there is a need to dernystify Islamic fundamentalism as intra-ciass conflict between the ruling classes in North Africa, the Middle East and West Asia. As George Caffentzis rightly points out (An Essay on the Events of September 11, 2001 Addreswd to the Antiglohalization Movement, October 6, 2001). it is the new generation of dissidents within these ruling classes that is accusing the other sections of the ruting class of being corrupt of squandering the region's resources and of selling out to the US. When It comes to the support of Palestine, the accusatIons of "duplicity and shallowness" of commitment to earce, solidarity by these ruling classes is a common criticism by these dissidents. therefore, many issues which need to be understood and which ultimately rce struggles for political power in these areas, rL 338 Clearly, the US policy in North Africa, the Middle East and West Asia has to be interrogated and problernatized. The American human rights movement has to take the lead in this interrogation and problematization, for the Americans need to understand their country's policy better. Let the American human rights movement revIsit the devastation of Iraq, the US government's policy on the management of oil resources in these areas and the building of American bases in Saudi Arabia (the fundamentalists see this as a betrayal of Islam because Saudi Arabia is Islam's most sacred land). Let the American human rights movement revisit the US policy on Israeli policIes in response to Palestinian demands, Yet the AmerIcan human rights movement, cannot ignore the economics and polittcs of oil issues in Uzbekistan, Turmenistan and Kazakhstan or the great energy reserves in or adjacent to the CaspIan region. America's oil interests may clarify why the bombings in Afghanistan may continue for a while. Overall, the American human rights movement must understand the role of the US in the new-world order. The American human rights movement should thereafter educate the American public on the consequences of the policies of their government in these areas of the world, Such a project by the American human rights movement will assist in part in answering the question the American public has asked of its leaders, "Why do they hate us so much?" The answers so far given by the American political leadership to the American people is a mix-up of half-truths and falsehoods. Indeed, it is the fundamental duty of every American to change their system, a role the American human rights movement has to play a part Ut

have also read write-ups by American academics, among them George Caffentzis, calling for the "lor-ig list of real connections between 'terrorist networks' and the personnel of the Bush administration" to be revealed. There is a claim that the reason why heads have not yet rolled in hIgh places in the Bush administration after what has been called "massive intelligence and security failure" attested by the September 11, 2001 crimes is because of these connections. It is through these connections that the training and financing of the very organizations that are now being hunted down under the banner of "terrorism" took place. Some of the personnel in the current Bush administration served during Bush's father's administration when the training and financing took place. As a parting shot to all this, The Wall Street Jwrrial (28/9/01) reported that the President's father works for the bin Laden family business in Saudi Arabia through the Car-lyle Group, an international consulting firm, as do other close associates of the President like former Secretary of State James Baker. These vested interests in the war should be revealed by the human rights movements- It is also worth noting that the human rights moveinents have had a marginal interest in the military and industrial complexes of the developed countries as root causes of human rights violations. Now is the time to move this marginal interest to the centre stage of human rights projects.

It has been argued that the human rights movements' inquiry into the September 11, 2001 attack should also focus on the new foreign investment law in Saudi Arabia thaA has sought to globalize the economy of Saudi Arabia. Saudi Arabia's policy for last seventy years has restricted foreign investment to the margins of it

339 investments. Economic and political reasons have been cIted for this change of policy. It has been argued that this change in policy may have triggered the desperation that resulted In the September 11th attack on America. This is a hypothesis George Caffentzis has proposed, and it is worthy of testing along with others.

Closer to home, I get the distinct feeling that the word "terrorist" has acquired a new meanIng. We hear our leaders say they know Osama bin Laden has friends here. We are told to watch out. We know in 1998 some NGOS were targeted for attacks by the Kenyan government. Let us remember that the pro-deniocracy activists may soon tall under the category of terrorists. While we have seen some important developments in the human rights field in the last decade, the war on terrorism may put the dictators in as good a position as they were in during the Cold War. You will recall that during the Cold War gross violations of human rights in Kenya did not attract the wrath of the West however hard Amnesty International campaigned for the respect of human rights. I fear all our successes of the last decade may disappear if the human rights movements are not aware that the global coalition on terrorism has given dictators a further lease on life. Will the US and Britain, for example, ask President Musharaf tb call for elections as scheduled? Those who have read Hempstone's book The Rogue Ambassador: An African Memoir, and what he says between the lines on the use of military facilities in Mombasa by the American military, will no doubt have noticed that the facilities are a matter of decisions by the Presidents of Kenya and theUS, To all other lesser mortals the facilities do not exist! How an astute politician like President Mci will use this situation I leave to your imagination. The Moi demonstration was a curtain raiser. Let us watch the political events unfold.

One final thought on the September 11th attack on America concludes this write-up. Since the Entebbe raid in 1976, there has not been another protect that has displayed such human genius and courage. Of course the parallel ends there: the purpose of the Entebbe raid was to save lives; the purpose on the attack on America was to destroy lives. Visiting Ground Zero, I was told that the engineers, the architects and other professionals involved in the construction of the twin towers of the World Trade Centre anticipated that the towers could collapse. Human intellect and genius ensured that their collapse was inward and not outward. In the event of an outward collapse, the towers would have resulted in the destruction of many buildings In the vicinity of the World Trade Centre. When will human genius and courage be deployed in the interests of humanity? That, too, is the challenge for the human rights movements.

IIIIIIFIIIII. 340 Universalism ALAMIN MAZRIJI

In this short essay I intend to interrogate aspects of the discourse of rights and to locate, in the process, the possibilities of a counter-discourse from an African perspective. As my point of departure, I would like to begin with two recent "Kenyan" events that took place in the capItal of the USA in the first quarter of the New MIllennium. The first was President Daniel Arap Mol's presentation at the National Summit on Africa in mid- February. As the only AfrIcan president who took the "trouble" to attend this unprecedented forum, President Moi enjoyed the goodwill of the majority of non-Kenyan participants. But to the bewilderment of virtually everyone present, the president took four times the amount of time allotted to him to describe Kenya's excellent human rights and democratic record over the years: The audience's consternation was caused as much by the irrelevance of MoPs sublect matter to the immediate aIms of the Summit as by his blatant untruths about Kenya's polittcal experience.

In contrast to the overwhelming support by non-Kenyans, groups of Kenyans, both within and outside the venue of the Summit, launched a protest against Mci's participation in the Summit. TheIr demonstration raised an important question: To what extent should continental Africans expect their African American sisters and brothers in the Diaspora to be part of their struggles against despotic rule in indIvidual nation-states? Would African Americans not serve the Interests of Africa better by focusing on an empowerment agenda that ignores the politics of individual nation- states?

The second event, which took place on March 8, 2000, was a presentation by Joel D. Barkan on "U.S. Human Rights Policy and liemocrarization in Kenya" under the auspices of the Human Rights implementatIon Prof ect of the U.S. institute of Peace. Among Barkan's conclusions was the idea that "notwithstanding the conventional wisdom that policy is made in WashinWon and implemented more or less faithfully in the field, U.S. human rights and demoeratisatlon policy is profoundly affected by who heads the U.S. mission and the commItment of other key members of the country team." Put simpLy, the ambassador makes a difference, as does the DCM, the Director of the USAID mission, and even the political officer." By all indication, this propositIon was intended to be a celebration of a former U.S. Ambassador to Kenya, Smith Hempstone, who was himself in attendance at the event.

The two events - Mat at the National SummIt and Barkan at the Institute of Peace - constitute, in fact, two poles of the discourse on rights within the relativity-universality spectrum. Ridiculous as Mol's claims about Kenya's human rights record may have appeared to everyone else present, he justified them from the perspective of a relativi "Our record is excellent if we are not judged by western terms of reference. Yet i

341 clear that relativity here was being invoked as an apologia for despotism

Barkans position, on the other hand, was informed more by universalistic Convictions. The U.S. was seen as having a moral obligation and an important role to play in shaping the human rights and democratic destiny of individual African countries - even if playing no more than the role of a "facilitator" - "by providing political cover and support for human rights activists and those seeking broader political reform, by providing small to moderate amounts of material and/or technical assistance, and by applying pressure selectively to regimes that violate human rights including aid conditionally."

The question has arisen, however, as to whether America's self-perception as an agent for the protection of human rights as a universal construct and for the advancement of the process of democratisation is not, in fact, a modernist articulation of the idea of "the white man's burden"? Are we witnessing a reconstruction of the "civilising mission" of the colonial era, couched in the language of universal brotherhood of man", wit,h its neo-Tarzans, like Smith Hempstorie, in the frontline?

From the two events, then, it is possible to argue that relativity and universality are, in fact, two sides of the same coin of class hegemony. And, ironically, Smith Flempstone himself is a personal embodiment of both the comfortable marriage between the paradigm5 of relativIty and universality and the inherent political contradictions within eadt of the paradigms.

Some thirty or so years ago, Smith i-Iempstone was a die-hard relativist in the human rights and democratic spheres of African politics. in his book that carries a rather patronising title of African Giant, he sees no possibility of a genuinely democratic and human rights culture in Africa that can be defended on some universal criteria. At best he could only envision the development of a peculiarly African brand of democracy that he dubbed Afrocracy - an odd synthesis of some western norms and values and Africa's pre-colonial political culture. Lik •e Moi at the National Summit in February 2000, therefore, l-Iempstone was perfectly willing to lustffy the violation of the rights and freedoms of African peoples and allow them to be conveniently sacrificed with impunity at the altar of a self-serving reJativity.

In effect, however, this was Hempstone's own way of encouraging a U.S. foreign policy that would accommodate difference" as a way of •pre-empting Communist penetration at the height of the politics of the Cold War. It was feared that a firm universalistic line by the USA would render potential allies reactive and force them to turn to the Soviet Union for support. And indeed - as amply revealed in Ihe Reds and the Blacks, a book still banned in Kenya, by America's first ambassador to Kenya African presidents and politicians themselves became pawns in ambassadorial games and machinations to curb the Communist influence. Relativity thus became yet another strand linking Washington with tyrannical regimes, a link well documented Chomsky's brilliant and monumental work, Third World Fascism and the n Connection. L 342 Some thirty years or so later, in the post-Cold War dispensation, Smith Hernpstone had been "converted" to universalisim He could now argue, in his Iii2gue AmbcIc, that in spite of the fact that Kenya lacks the necessary pre-reuisite conditions for liberal democracy, such a political system could still be realised if, in part, the USA government is wifling to demonstrate consistent commitment to the project. Hempstone was, of course, partly lamenting his own replacement as US ambassador to }Cenya at a time when many Kenyans themselves were celebrating him as a hero of their democratic struggle. But Hempstone was also arUcilatirig the politics of the post-Cold War times.

These are the times of neo-Jiberaiisni, a politico-economic paradigm that refers to the policies and processes whereby a reluively handful of private interests are permitted through the globalisation of market forces, to control as much as possible of oclaI life in order to rrlaxirnise their personal profit. -Co consolidate its position in Africa, African reformers" are required to make rapid progress in improving condftions for business operations and build-in free-market reforms with trade and investment policies that meet the requirements of Western investors. As a systelil, rleQ-liberalism works best where there is a semblance of open society and a format electorat system even as the population is diverted from the information, access, and public forums necessary for meaningful participation in decision making.

Some of the more immediate irnpllcations of tieo-Jiberalism include the following:

Glabalisation and legitimisation of market forces towards po]iticoeconomic homogenisatlon and the creation of a world in America's own image.

A diflusionist ideology with America and Europe as the centre of the good" within the context of a global, apartheid-like divide between the North and the South, and

A steady impoverishment of the "rest" vis-à-vis the "west," with the feminisation of poverty being a recurrent feature of this decline in both relative and absolute terms of material well-being of the peopk

It is these kinds of outcomes that the American unfversatist position of rights and democracy is, in fact, partly Intended to promote. In the final analysis, it is an effort to forge a political space that provides unimpeded' "right" and freedom" for the exploitation of labour, markets and resources, and for the "right" and ' freedom " of Western cultural control of global public opinion (through the Instrumentality of communication technology mediated through the English language).

Against the above backdrop, then, the political construction of a counter-discourse of rights must be predicated on the foflowing, among other factors:

The internationalisation of the struggle for human rights: This is the dialectical response to the gJobal thrust of the nec-liberal agenda of rights. Human rights advocates and institutions must seek trans-national alliances with the global civil society and se to expose the common nec- liberal foundations of many of the most basic viol

343 of rights - in addition to some of the divergent local ones. The Internet has been an important tool in the service of nec-liberalism: Can it be turned into an instrument of war against that same system through its potential to forge links with activIst groups elsewhere in the world?

Diversification of the content base of rights as well as in its modes of

articulation (e.g. constitutional bill of rights, practical human values 1 religious doctrines etc) Africa must be prepared to learn from the East as much as from the West, from Hinduism and Islam as much as from the Judeo-Christian tradition. The more multicultural human rights and the human rights discourses become the less dependent Africa is likely to be in crafting a human rights understanding commensurate with Its own hIstorical reality, and the more dIfficult becomes the Western control of the human rights regime at large. Reliance on a multiplicity of sources to shed light on Africa's own experiences Is likely to lead to healthIer and more creative options for Africa than dependence on Western lessons alone.

Indigenisation of the content-base of human rights and its media of expression Africans must begin to have faith that their own indigenous knowledge systems may have much to offer in charting a human rights, constitutional and legal framework for the future. More importantly, however, they must learn to craft a counter-discourse in African languages. Otherwise Africa will continue paying a high price for its Euro- constitutionalism. The fact that the African constitutions are almost exclusively in European languages, for example, may have slowed down the development of a new constitutional culture in AfrIca. We are not learning to think in constitutional terms, partly because we live in political systems that stifle the development of indigenous constitutional vocabulary. With the help of indigenous languages fr allowing the average citizen the democratic space to participate in inscribing meaning, into the counter- discourse on rights. This can be achieved by translating the language of rights into concrete everyday experiences of the people through active participation in grassroots, galvanising and organising around specific issues and concerns. Specific attention ought to be paid here to the "gendering" of the emergent counter-discourse by ensuring that women and gay communities are central to each and every rights prefect on the ground.

These factors presume that the creation of a society without human rights violations requires more than the right constitution, the rule of law and adequate institutions for the adminIstration of lustice. It requires in addition and more fundamentally, the construction of a new culture on the foundations of the experiences and struggles of the people at the grassroots. And as much as the USA and its western allies continue to capitalise, albeit inconsistently, on the discourse of rights. Africa must be prepared the human and epistemological resources at its disposaL both within the t ent and globally to create a counter-hegemonic discourse capable of challenging -liberal dispensation. L 344 HE

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