These personal reflections on the present situation in Kenya are triggered by a conference I attended in Geneva on 30-31 March 2009 on ‘The national dialogue and reconciliation: one year later’, organised by the Kofi Annan Foundation in partnership with the Centre for Humanitarian Dialogue and the International Center for Transitional Justice. As a Ugandan I am at least a stakeholder in the ongoing process of peace making in Kenya. If Kenya burns, Uganda also feels the heat. And vice versa, if Uganda is on fire, Kenya is a home to refugees, as it was for me.

The conference was attended by some 300 people including about 50-60 from Kenya among whom there was a deputy prime minister, the attorney general, some ministers and parliamentarians and other distinguished personalities, several representatives of civil society and the trade unions, and at least one retired general from the army. But apart from myself I do not believe there was any other Ugandan, and apart from the former president of Tanzania, Benjamin W. Mkapa, any other Tanzanian.

This was curious. Why were there so many people from Europe or the West at the conference but not from Uganda or Tanzania? Where was the East African community? Within the community there are so many daily cross-border interactions between the people of the region, and between the heads of state and functional ministers who regularly meet to discuss matters of common concern. Why should that process of interaction not extend to extending a helping hand to resolving matters that divided fellow brothers and sisters in Kenya? Pondering over this puzzle whilst shuffling my documents and waiting for the formal opening, I remembered my own days in exile, first in Kenya in 1971-72, and then in Tanzania in 1973-79.

For eight years (1971-79) Ugandans were brutalised under the rule of Idi Amin, who was put in power by the combined efforts of the British, Israel and some national forces alienated by the rule of Milton Obote. Britain continued to supply weapons of torture, military arms and consumer goods to the Amin regime, and there was very little that Kenya or Tanzania, or those of us who were in exile, could immediately do to change the situation. However, Uganda’s invasion of the Kagera basin in late 1978 gave an opportunity to President Nyerere to counterattack. Britain threatened to move a resolution in the Security Council of the United Nations to block Tanzanian action alleging that it was ‘interference’ in the internal affairs of Uganda. To counter this, Ugandans in exile (from Tanzania, Kenya, Zambia, and overseas) rallied behind Nyerere, gathered at a conference in Moshi, forged a united front under the Uganda National Liberation Front (UNLF), and when Amin fled the country in April 1979, formed the first post-Amin democratic government in the country. Among thousands of others, I returned to Uganda.

Peace, alas, did not last long. We Ugandans were at each other within the year. That is another story, no less relevant nonetheless, to the present saga in Kenya. The point is that in 1979, we were grateful that Tanzania and Kenya gave us the support we needed to get rid of a ruthless maniac from Uganda who was until the last day supported by powerful forces in Europe and America. And hence my puzzle: why is that when Kenyans need support, we Ugandans and Tanzanians are so conspicuously absent? Admittedly, the presence of the former president of Tanzania, Benjamin Mkapa, as one of the three-member Panel of Eminent Personalities, helped the mediation process, but he came as member of a team brought together by the African Union under the leadership of the former secretary general of the United Nations, Kofi Annan. President Museveni did see President Mwai Kibaki soon after the elections in Kenya, but then he was soon out of the scene.

I have no explanation to offer for this what I regard as a serious slip-up of the principle of solidarity among East African neighbours. To take an example from another region of Africa, and whatever the shortcomings of the mediation process undertaken by the Southern African Development Community (SADC) led by President Thabo Mbeki in the long and arduous process of mediation in Zimbabwe, it was at least a practical application of the principle of concern and solidarity. The process still continues as we write these words, and indeed the jury is still out in the case of Zimbabwe. But what SADC`s mediation did was at least to provide a protective shield to Zimbabwe from the interference of America, Britain and Europe.

This is not to say that there is interference in Kenya from America or Europe; I have no such evidence. But it is still a matter of concern that the Kenya peace process, and the Geneva conference, brought the stakeholders from within Kenya and those from the international community, but not from within the region. Whether a regional presence would have made any difference to the process is impossible to say. That it did not happen should itself be a matter of concern to all fellow East Africans.

Whilst I was musing, the formal process began. Kofi Annan provided a thumb-nail sketch of the background to the mediation process, and the process of implementation. The conference quickly settled down to identifying the causes and consequences of the mayhem in Kenya. Most of the presentations were made by Kenyans – from government as well as from non-governmental representatives, women and men, young and old, ministers, trade unionists, an army general and parliamentarians. They were all without exception brilliant presentations – cool and reasoned, sometimes passionate and remarkably candid. They spent more time on how to move forward, trying hard, though not always succeeding, to avoid the ‘blame game’.

Much as I was tempted – as a legitimate stakeholder – to speak, I decided to sit, listen, and take notes. The conversation boiled down essentially to two issues. One related to questions of governance, of law and order, of violence and impunity, of electoral flaws and power sharing. The other related to economic and welfare issues – of the ten million poor and homeless in rural and urban areas that need immediate assistance, the struggles about land and resources, and the connection between these matters and the issues of governance.

In the serene surroundings of the Intercontinental in Geneva, freshly breaking into spring, and away from home, the participants reached a remarkable degree of consensus in a day and half of discussions. As I expected, learning from my own previous experience in Uganda, the issues of power sharing, ethnicity, and governance overshadowed matters related to economics and welfare. Listening to the debate I wondered, however, if the ethnic card was not being overplayed. To be sure, ethnic divisions are a factor, a reality of all Africa, whether it is Kenya, Uganda, Rwanda or Zimbabwe. But why should it be the salient factor, and if so, what circumstances make it salient? After all, the Kikuyus and the Luos, the Bahutu and the Watutsi, the Shona and the Ndebele have lived reasonably peacefully with one another for centuries. As a friend wrote in an article at the time, ‘I did not see Kikuyu residents in Nairobi's exclusive Karen suburb hack their Luo or Kalenjin neighbours with machetes or worse still shoot at each other, even though the majority of them own guns. However, in the informal settlements, neighbours turned against each other.’ Why is it, he asked, that it is the poor who turn against each other?

The question of ethnic violence is not an easy to understand. Several explanations were offered at the Geneva discourse. The Rift Valley region became one of the locations of violence, it was argued, because during the British colonial days, lands were seized from the ‘indigenous’ people and given to ‘foreigners’. So when the 2007 elections went sour, the ‘foreigners’ became the targets of violence. Others questioned whether it was simply an issue of ‘resource allocation’ and historical inequities; they pinned it down to the more primordial matter of ‘identity’.

One issue on which there was a near-unanimous agreement was that the ‘state’, or ‘the political elite/class’, or simply ‘the politicians’ – the participants offered their own preferred terminology – had lost the confidence of the people. People no longer trusted the state. ‘The people were behind the demand and the processes leading to the constitutional change,’ said a constitutional expert who has been directly engaged in the constitutional process, ‘but the politicians have sabotaged the process and the outcome.’ One politician offered this: ‘We are building a new electoral system afresh but the nomination of commissioners is blocked by political manipulations and that is our collective failing as a political class’. And yet another: ‘People feel that they are not part of the reconciliation and implementation process of the Peace Accord; the political elite have taken over.’

When it came to ‘the way forward’, the bulk of the interventions focused, not surprisingly, on how to build credible and trusted institutions of governance – from the electoral system to police reform, from the attorney general’s office to whether the country should be run as a presidential system or one that locates executive power in the office of the prime minister. These are complex issues. Although many of them are technical issues, they assume a political character in the midst of conflict. A constitutional expert from a Latin American country offered ‘six principles of a good electoral system’, arguing, correctly, that the roots of violence lie deep in society but a flawed election can trigger violence (as happened in Mexico, he added, for comparison). The least one can do is make sure that an independent electoral system is in place. The Electoral Commission of Kenya (ECK), he observed, lacked the two prerequisites of an electoral system: it lacked the confidence of the stakeholders; and its staff had little competence, little experience and no specific knowledge.

One issue that preoccupied many of the participants was the question of impunity. Police violence went unchecked and uncensored. Some alleged that police violence was ‘state-sponsored’. Impunity accumulated over a long period of time immobilised the security and the judicial systems, and when these systems fail, ‘the youth take matters in their hands’ burning homes and churches. ‘We had violence in 1992 and 1997,’ one parliamentarian observed, ‘but in 2002 we had a regime change without violence. And then violence broke again in 2007. The difference between 2002 and 2007 was that in 2007 the security forces were implicated.’

That took the discussion to why the parliament was not able to set up the special tribunal recommended by the Commission of Inquiry into Post-Election Violence (the Waki Commission). Again, various explanations were offered with the normal suspects – ‘the politicians’ – taking the brunt of the burden of failure to act. The question that posed itself was: What should be done if the parliament is unable to set up the proposed special tribunal? Should the ‘criminals’ go unpunished? Should the victims have no redress? If there is no redress, and if the criminals enjoy impunity, again and again, would this not undermine efforts to set up credible institutions of governance? Would it not impair the task of ‘state building’? These are weighty and urgent questions.

Alternatives were suggested to the hitherto failed attempt to set up the special tribunal. These included the International Criminal Court (ICC) in The Hague, to setting up a Sierra Leone type of ‘hybrid’ tribunal (consisting of national and international judges), to setting up a unique ‘Kenya model’. One Kenyan interlocutor suggested that the ‘sealed envelope’ containing the list of alleged criminals in the possession of the AU panel of eminent African personalities should go to the Prosecutor of the ICC, and be made public. A representative from the ICC said the ICC was ‘waiting in the wings’, and it can respond quickly if approached.

I wondered if the panel really had the authority to approach the ICC on behalf of Kenya or of ‘the international community’. What if the panel did take the responsibility on its own to pass on ‘the envelope’ to the prosecutor in The Hague, would it really serve a useful purpose, or would it complicate matters, given the controversy that the ICC is involved on the issue of Darfur? Closer to home in Uganda, I am aware that a similar proposal to bring Joseph Kony of the Lords Resistance Army operating in the north of Uganda to the ICC has added another layer of complexity in the delicate peace negotiations process. Some people in Uganda have suggested an amnesty as a means of moving forward. Comparison with South Africa, where the apartheid regime human violators escaped with impunity, came to mind. Is amnesty sometimes not a better alternative if it helps to throw back some of the more painful aspects of history in order that a fresh start is made to build credible institutions of state? Can the creation of a trusted penal system, an independent electoral system, the reform of the police, and above all, an independent judiciary, not be done without revenge and punishment?

Of course, I have no clear answers, and in any case, I kept my thoughts to myself. I sensed that there was no mood in the Geneva Intercontinental conference for talk of amnesty. There was a stronger sense that if the government or the parliament failed to set up the special tribunal, then the matter should proceed to the ICC prosecutor.

Throughout the discussions my mind kept on returning to the question I had posed earlier: why are there so many people from Europe and so few from East Africa (apart from Kenyans themselves)? It was like sitting in a conference on peace and conciliation process in say Ukraine with more Africans involved in it than Europeans from the region. A European ambassador based in Nairobi offered a partial explanation. She said, among other things, that the events in Kenya had shocked the donor community; they had thought that Kenya was a relatively peaceful and stable economic and communications hub in the region. So when violence erupted, and when Kofi Annan came on the scene, they came immediately to support him. She went on to say that they were only helping the ‘Kenya process’, and as donors they were pleased to put in money into the mediation process, as also in the holding of the Geneva conference.

But I was not satisfied. Help from European friends is fine, provided it is based on solidarity and without hidden agendas, and provided it does not come with lectures about learning from Europe or America about democracy, good governance and human rights. But the troubling matter was that this kind of help enabled Uganda and Tanzania and the East African Community to get off the hook. It allowed them an exemption from their moral responsibility. Furthermore, if it comes to money, are the countries in the East African region so poor, or so aid dependent, that they could not raise it for a peace and conciliation conference in which they are the principal stakeholders and the principal beneficiaries? Couldn’t they have done so without going to the donors? Since I have just completed a book on ‘Ending aid dependence’, this question vexed me as I walked back home from the conference.

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* Yash Tandon is former executive director of the South Centre, and chairman of SEATINI (Southern and Eastern African Trade Information and Negotiations Institute)
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