cc We are a year away from the shocking events of last year — a Presidential elections whose results (we are told) can never be definitively known and the violence that followed the belated (and then hurried) announcement of the supposed results. The net effects we all now know—over 1,000 deaths, a third of which were at the hands of our security services, women (and some men) sexually violated by perpetrators of all forms of violence, over 300,000 internally displaced from no less than four provinces, the destruction of homes and livelihoods —and too, the base of economy and staple food supply. Land is a time bomb — not waiting to happen (as it has already happened), but waiting to re-explode. We cannot take another explosion. This second year of the Grand Coalition government needs to protect us from the same. And we need to all ensure that it does, writes L Muthoni Wanyeki.

A MODEL OF SUCCESS?

The mediation process guided by Kofi Annan, former United Nations Secretary General, at the behest of the African Union and with the support of many bilaterals under the UN, is credited with saving the day. But there are many Kenyans, here and abroad, known and unknown, who contributed to the mediation process’ success.

An as yet untold story—how the Kenya Red Cross, tasked by the government (such as it was at the time) with the tacit support of the heads of UN agencies involved in humanitarian work ensured the face and leadership of the relief effort was Kenyan. Preventing the kind of feeding frenzy too often witnessed in other conflict situations as international relief organisations run roughshod over national efforts, compromising national ownership and, more importantly, the balance between relief and what is required politically to ensure the move from relief to sustainable recovery.

And there are still many untold stories relating to the relief effort—not just all of the Kenyans who gave of their resources to support the Kenya Red Cross, but those who acted where the Kenya Red Cross could not initially go.

However, relief alone obviously was not enough. The causes needed as much attention as the symptoms. Another as yet untold story—the numerous coalitions of citizens who came together to demand a return to peace. The former diplomats who initiated the Citizens Coalition for Peace, shuttling back and forth between the protagonists, trying to lay the ground for negotiations. Kenyans for Peace with Truth and Justice, the National Civil Society Congress and the women’s bi-partisan initiative, who condemned both the elections and the violence, demonstrating there were national voices opposed to the pretence that life could go on as usual and helped up the domestic, regional and international pressure for negotiations to commence. The academics who worked with them to develop scenarios eventually considered by the mediation process on how to move forward. The private sector lobbies under the Kenya Association of Manufacturing and then ultimately the trade unions who used those scenarios to expand their own capacity for bringing domestic pressure to bear.

Individual African states as well as various mechanisms of the African Union—from the Forum of Retired African Presidents to the panel of eminent personalities and the African Commission on Human and Peoples’ Rights—who ensured regional engagement and pressure until a compromise was reached. With the full support of individual member states and mechanisms of the United Nations.

Kenya thus may have been a dramatically unexpected African failure. But we were also, in the end, an African success — we were lucky. That the violence ensued so fast and unexpectedly that many domestic points of leverage—individuals and institutions were still here, standing and able to play a role when the state proved itself incapable and unwilling to do so. That is not the case elsewhere — Zimbabwe is one example, where the haemorrhage of its human resources and institutions has been on-going for almost a decade. And while there is talk of our having provided a model for intervention in times of crisis—with the UN now having established the permanent capacity for mediation efforts of this kind—it is therefore not a model that is necessarily replicable. Not just because of the domestic aspects to our success—but also because the regional aspects to our success cannot be counted on in all instances — the AU’s determination to intervene constructively here was itself dependent on many factors, including not just our geo-political strategic importance to the region, but also the pan-African connections of domestic players at all levels and the awareness and knowledge of how to engage the AU’s mechanisms and processes.

MANY UNTOLD STORIES

But success in those terms is, evidently, not necessarily success at definitively resolving both symptoms and causes. And now, one year away, re-visiting the substantive content of the mediation process’ agreements is important. A package of actions and reforms was agreed to — in fact, the scenario initially placed on the table for resolution of the political impasse proposed a coalition government whose mandate and term would be limited and tied solely to achievement of those actions and reforms. Some progress has been made, to be sure — but progress on the most fundamental of actions and reforms remains to be seen. And, as we enter into the second year of the so-called Grand Coalition government, we must re-focus our attention on the same — even amidst all the drama. distraction and noise created by the lurching of the Grand Coalition government from one new crisis and scandal to another. Electoral terms end far sooner than we imagine — evidenced, astonishingly, by the emergence of succession debates as early as last year — and we simply cannot (cannot) afford to enter into another electoral process in four years without resolution of the actions and reforms agreed to.

To follow up on the actions and reforms agreed to by the mediation process, Annan has his own monitoring and evaluation framework, developed by Kenyan academics. The Grand Coalition government too has an M&E framework — with many actions and reforms tasked to the Ministry of Justice, National Cohesion and Constitutional Affairs and others finding reflection in Vision 2030. But M&E frameworks aside, I want to refer simply to the mediation process agreements themselves — which more than adequately outline the basics demanded of us.

AGENDA ITEM ONE: ENDING THE VIOLENCE

Agenda Item One had to do with ending the violence, including ensuring the security services acted within the bounds of the Constitution and the law and disarming and demobilising all armed groups.

The Commission of Inquiry into the Post Elections Violence has established, damningly, the full extent of the failure of our security services to act within the limits of the Constitution and the law during the crisis. The National Security and Intelligence Service is condemned for having interfered with the electoral process. The Kenya Police Force and the Administration Police stands accused of not just accounting for no less than a third of all deaths during the period, but also of having committed criminal acts including looting and sexual violence.

The CIPEV thus recommended a wide range of security sector reforms — including addressing questions of chain of command, merging the KPF and the AP under a new Police Commission, establishing civilian, statutorily backed oversight and fast-tracking investigations into and prosecutions of, in particular, all individual members of the security services accused of sexual violence. Importantly, while noting that training of the security services in human rights (including women’s rights) is on-going, the CIPEV also stressed that training without accountability—at all levels is, ultimately, irrelevant.

Since the CIPEV report’s release, the focus has largely been on investigations and prosecutions of those found by the CIPEV to bear greatest responsibility for the organised violence in the north Rift and the equally organised counter-attacks in Central, Nairobi and the south Rift. What has escaped notice is thus follow up with respect to security sector reform. The KPF did, it is true, establish what it called an oversight body with some civilian participation — but this effort was dismissed by the CIPEV as insufficient to assure accountability. And the KPF also established a task force to investigate claims of sexual violence by its members — but women’s organisations coopted into that task force have withdrawn from it given their lack of influence over its work, its failure to investigate in a manner that would ensure women both come forward and receive adequate attention to fears of reprisals for having done so. The broader questions of security sector reform remain obscure to the general public. The process needs to be opened up — and, in doing so, the general public must insist that the security services do not manage to focus attention solely on questions of capacity (equipment, numbers, resources and training) but also address substantively questions of approach (accountability).

Questions of justice remain pertinent — for all levels of perpetrators, civilian and security service, not just those with greatest responsibility. The fate of the proposed Special Tribunal to try the latter is now uncertain, following last week’s events in the House—and, even if eventually established, the question is whether all the safeguards on its independence and operational capacity proposed by the CIPEV will remain in place.

As for disarmament and demobilisation of all armed groups, very little appears to have happened. Yes, the armed forces seem to have addressed the armed group active in Mount Elgon—the Sabaot Land Defence Force — but did so in a manner inconsistent with human rights. More importantly, the SLDF was not a protagonist in the crisis. Attention needs to be played to what has happened with the armed group that become increasingly organised during the crisis in the north Rift — what happened to its structure, its alleged training areas, its allegedly increasingly modern weapons. This is particularly so in light of recent warnings that preparations for renewed violence are underway — tied to the parliamentary discussions of the bills establishing the Special Tribunal. Similarly, attention needs to be paid to the allegedly breakaway/parallel Mungiki that was active in the south Rift during the crisis—for which funds had been raised and arms procured.

It is true that there have been repeated reports of disruptions of Mungiki recruitment drives and meetings over the last couple of months — with arrests aplenty. Models for disarmament, demobilisation and reintegration exist aplenty from Africa’s other armed conflicts. But the fact is that the incentives to disarm and demobilise here simply do not yet exist — for Kenya’s mass of un/and underemployed young men, groups such as Mungiki provide not just a source of identity and common cause, but economic livelihoods from protection rackets that nothing else on offer yet rival as well as the means for political engagement — however ultimately fruitlessly—through their constantly shifting political alignments with individual politicians or groups of politicians. It is clear therefore that Agenda Item One is far from being conclusively addressed — and that doing so will require far more openness to ideas and input on the part of those responsible for our security than currently is the case.

AGENDA ITEM TWO: RESTORING FUNDAMENTAL FREEDOMS AND ADDRESSING THE HUMANITARIAN CRISIS

Agenda Item Two dealt with the restoration of fundamental freedoms and the humanitarian crisis.

Critical limitations on fundamental freedoms — such as the ban on live broadcasts — addressed at the time obviously resurfaced in terms of the more obnoxious amendments passed to the Communications Act. What this shows — as does the fact that it has been virtually impossible to demonstrate peacefully in public since last year — is two things. First, it shows that the mindset that considers the enjoyment of our full range of human rights (including, notably, the rights to the freedoms of assembly, association and expression) an impediment to security persists. While this is not entirely surprising, given that our security is still precarious and the security services feel themselves to be on the defensive, it is unacceptable. It is also unstrategic as the more that people’s human rights are suppressed, the more motivation is provided for people to challenge security in more fundamental ways. Second, that there is an apparent dearth of ideas on how to achieve both — again, far more openness is required to help move forward.

As for the humanitarian crisis, yes, Operation Rudi Nyumbani has taken place. Yes, the initial, large and services camps for IDPs have been disbanded. But, a contested number of IDPs have simply moved into smaller, unserviced camps — in some documented cases, against their wills (and thus against regional and international standards for addressing internal displacement). And other IDPs have complained of both the insufficiency of the funds and resources provided for resettlement as well as corruption in the administration of the same.

Part of the problem has been conceptual. Not all IDPs were small scale farmers, with land to return to. Some of those who were — and were able to return — still find themselves unable to re-build and actually reside on their farms due to persistent security concerns, despite the additional police posts in the vicinity. But others, including many of those who were small and medium size business owners, renting both residential and business premises, cannot find landlords willing to rent to them again. Others were migrant workers on flower and tea farms in the south and north Rift, as well as Central respectively — and while some farms have individually taken responsibility to assure them of the safety to return, others have bowed to localised pressures to hire only those deems to be ‘indigenous’ to the locality. And while many community-based and provincial administration peacebuilding initiatives are underway, they have tended to focus only on the immediate — not the long-term grievances (such as land) among those considered now to be ‘host’ communities.

What is needed is a more careful categorisation of IDPs and their specific needs for resettlement—as well as a focus on the legitimate grievances of the so-called ‘host’ communities. Without the same, the resettlement process can only be tenuous.

AGENDA ITEM THREE: THE POLITICAL SETTLEMENT

Part of the political settlement was to be addressed by the Independent Review Commission. While ultimately unhelpful in terms of determining the specifics of what happened, the specifics of the effects of what happened in terms of supposed electoral outcomes at the presidential level and the specifics of all those individuals and institutions from whom accountability should be sought, the IREC’s report has been useful in terms of reiterating the need for fundamental electoral reform.

The Electoral Commission of Kenya having thus been made the sole scapegoat for the electoral farce, it has been disbanded with nothing short of alacrity. An interim ECK is now expected to be established, together with a commission tasked with the review of electoral boundaries. The latter will deal with one long standing electoral concern—the gerrymandering that has happened in the past that has ensured that one (wo)man’s vote is not the same as another (wo)man’s vote across the country.

While this is positive, it must be noted that the determination of new constituency boundaries is likely to be as politicised a process as all other elements of electoral reform expected to be addressed by the constitutional process—particularly that concerning moving away from a winner takes all electoral system.

The rest of the political settlement had to do with the establishment of the Grand Coalition government, about which there were three main fears. First, that the offices of the President and Prime Minister were equally weighted—which, as the tug of war between the PM and the Head of the Civil Service has shown, they are not. What this portends for the necessary constructive interplay between the Executive and the House with respect to reform is alarming—and needs to be addressed sooner rather than later.

Second, however, was the fear that with both sides in government (and such an unprecedentedly large government at that), we would lack an effective opposition. The obviously self-interested and unprincipled efforts at establishing a so-called ‘grand opposition’ notwithstanding, this is a fear that has clearly proven unfounded. Tensions persist between the two parties to the Grand Coalition government. Tensions also exist within both parties to the same—occasioned by succession concerns within the Party of National Unity and occasioned by differences between the PM and the Coast and Rift Valley blocks of the Orange Democratic Movement on matters ranging from justice to the Mau forest. What that means is that leverage exists between and within parties to the Grand Coalition government for issues normally brought forward by the official opposition to emerge—and that is a good thing—even if they emerge essentially to answer power plays of one kind or another rather than principle.

Third was the fear that the Grand Coalition government would not last. This fear too has proven unfounded — not a single parliamentarian has any intention of submitting to a new electoral process before her/his five year mandate. On the surface, therefore, we can expect the Grand Coalition government to last — however nominally. Below the surface, however, we can expect the configuration of the parties to the Grand Coalition government to be altered beyond recognition—an alteration in which the succession debates particularly within Central are likely to be most significant.

And that is our political settlement — amoral, unwieldy but likely to hold, if in new ways.

AGENDA ITEM FOUR: LONG TERM ISSUES

More than any other, Agenda Item Four was meant to address the root causes of the crisis through: transitional justice; constitutional reform; addressing inequality; land reform; and addressing the youth bulge.

Speaking to a Kenyan audience last year, Ugandan Professor Mahmood Mamdani of Columbia University noted that: ‘violence is not its own explanation.’ What he meant was that all the investigations into who committed violence and how did not necessarily always adequately account for why they did so. We have recognised that fact through the passing of the bill to establish (finally!) a Truth, Justice and Reconciliation Commission as well as the passing of bills to (finally!) conclude our constitutional reform process. The acts are not without fault—negotiations on the same by the House were inevitably clouded by the tensions and self-interests referred to above.

But, however flawed the processes thus unrolled might be, what we need to focus on now is the substantive content brought to bear on the same. The devil is in the detail—resolving historical injustices will mean both retributive and restorative justice processes for survivors, victims and their families. Constitutional reform that matters has to address, at a minimum, Presidential powers, the separation of powers, checks and balances and our electoral system — as well as, importantly, ensuring constitutional enhancement of equality rights — for an expanded list of protected grounds, notable among which must be gender/sex and ethnicity.

So far, all we have done with respect to equality is pass the utterly inadequate Ethnic and Race Relations Act — which not only failed to define discrimination (direct and systemic) but failed to elaborate the ways in which the one protected ground it addressed (ethnicity/race) interplays with other protected grounds (through compounded/multiple discrimination). And failed too to propose the range of measures that can and must be taken when discrimination is found to exist. We do not have problems of an ethnic nature solely because we are ignorant and uneducated about ethnicity — for which public education would be a sufficient response. We have problems of an ethnic nature because direct and systemic discrimination against us has occurred in the past and continues to occur — for which no remedies were proposed. Issues of equality thus need to be taken up both in the constitutional reform process, as well as in all matters relating to national planning and service delivery through the national budgeting process.

But if we are as yet unprepared for the above, we are even less prepared it seems to address land reform and the increasingly urgent issue of youth bulge—and both taking gender and women’s human rights fully into account. For example, with respect to the latter, while it is a concern that an inordinate section of our population is demographically categorised as ‘young’ and un/underemployed, it is clear that with young women still bearing primary responsibility for reproductive and community labour, the problems associated with un/underemployment are different for them as compared to young men.

Meanwhile, on the first front — land reform — the draft land policy (which does take gender and women’s human rights into account) is still apparently inexplicably stuck at the Cabinet level. There seems to be no impetus to move it forward. And too, there appears to be no action on actually beginning to map out the different levels of legitimate claim to land that will need to be taken into account and addressed before any fundamental restructuring of land ownership and tenure patterns established under colonialism can take place. Neither has there been any evidence of movement to resuscitate and move on supra-shifts in land ownership and tenure occasioned by corruption—as well spelt out in various reports easily available to us, such as that of the Ndungu Commission.

As we have seen, land is a time bomb — not waiting to happen (as it has already happened), but waiting to re-explode.

We cannot take another explosion. This second year of the Grand Coalition government needs to protect us from the same. And we need to all ensure that it does.

* L. Muthoni Wanyeki is the Executive Director of the Kenya Human Rights Commission (KHRC) * Please send comments to [email protected] or comment online at http://www.pambazuka.org/

* A shorter version of this article appeared in the East African