Impunity in Kenya started with the explorers and early settlers who demonstrated no respect for the rule of law of the people they encountered. As they advanced from the coast to the hinterland, they confronted different tribes, who tried to stop them with bows, arrows and spears and tried to force them to respect local laws and maintain order. Treaties and verbal agreements were sometimes made but were never respected. The natives were quickly overcome by the gun, which was a more superior weapon. Once firmly established, the newcomers governed with impunity.

Prior to that, tribes had limited interactions with each other unless they were neighbours, in which case they exchanged goods, intermarried and even raided each other for livestock according to set rules of engagement. Otherwise, these micro-nations were strangers to each other. However, as they were moved around and interacted, rather than cultivate unity of purpose, they developed and embraced biases and prejudices over their practices and customs. That only served the old adage of ‘divide and rule’.

The Mau Mau freedom struggle offered an opportunity for some tribal leaders to unite and end colonialism. But at independence, the colonial administration handed over the instruments of power to loyalists and opportunists who had supported the colonial administration against those who fought the Mau Mau war of liberation. Having stepped into the shoes of the colonial administrators, the new ruling group – which was trained by the colonial adminstrators – embraced the same unrestrained, exploitative and consumptive lifestyle and contempt and disregard for the natives. The change was simply a change of guards. Eventually, misuse of power, corruption and mis-governance by a predatory system impoverished and under-developed the country, which became dependent and is now threatened with insecurity and survival.

Despite strong tribal affiliations and loyalty, members of the ruling elites and the rich private sector are able to come together and form strong alliances to win elections and share power and the privileges that come with it. As long as they can take pieces of the ‘national cake’ to their tribesmen, and convince them that their interests are being taken care of, they remain valuable to each other. Otherwise, they become a burden and are discarded.

This capacity of the ruling elites and the affluent sector to cut deals between them and persuade their communities to support them – even when those deals are against the welfare of the greater good of society and country – is founded on impunity: The ruling elites have come to believe that they can commit any crimes and get away with it, as long as they are supported by their micro-nations and each other.

The crimes they commit range from dealing with illegal substances like drugs and alcohol, accepting bribes, embracing corruption, stealing from the treasury and granaries and allocating forests, wetlands, land and public properties to self and each other, to rigging elections and generally governing as if the state is personal property. They also include overseeing killings of members of other micro-nations, like during the tribal clashes of 1991, 1992, 1997 and even 2008. Because they control the judiciary, the police, the army and until recently, the parliament, it has always been possible to agree on deals, which they defend before the public as they ask the victims of their mis-governance to ‘forgive and forget’. The crimes are then quickly swept under the carpet and the ruling elites return to the helm to do business as usual.

They may disagree sometimes if they feel cheated or compromised, at which point they may call upon the members of their micro-nations to make demands by force if necessary. This explains the recurrence of tribal clashes and even the post-election violence of 2008.

So, impunity has always been part of governance in Kenya. That is why the country is unable to establish a tribunal to try suspects of the post-election violence. The real intention of the just-formed Truth, Justice and Reconciliation Commission (TJRC) therefore, is to facilitate impunity, hoodwink and massage the victims and yet again, sweep the crimes under the carpet. None of the leaders has ever been made to account for crimes they commit against the state. Why now?

The real truth is that none of them is really interested in the truth or justice. But in keeping with our tradition, a Truth Justice and Reconciliation Commission has been created to collect information from the public and take the report to the ruling elites for the archives.

BROUGHT TO YOU BY PAMBAZUKA NEWS

* Professor Wangari Maathai is a is a Nobel Peace Prize winner and the author of The Challenge for Africa.
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