PAMBAZUKA NEWS: There have been three events related to Kenya which have drawn some public attention. I wonder if you could tell us what you think is the significance of the report by Philip Alston, the United Nations special rapporteur on extrajudicial, summary or arbitrary executions, on extra-judicial killings in Kenya; the submission of the so-called ‘envelope’ by Kofi Annan, former UN Secretary-General, to the International Criminal Court; and the more recent announcement of the formation of the Truth, Justice and Reconciliation Commission. What has brought all these things about?

MAINA KIAI: I think that the main thing that’s brought them about is a systematic and concerted push by Kenyans, especially led by civil society, to end the culture of impunity. The Alston report on extrajudicial executions is something that has been outstanding for really the last fifteen, twenty years in Kenya regarding how the police use force. This was the first international confirmation of what Kenyans know and what Kenyans have been saying for years. So it was important because for a long time the government has been ‘pooh-poohing’ the reports of national civil society, of national institutions, including the Kenya National Commission on Human Rights, saying that it is not true that there have been such extrajudicial killings. But then when it was vindicated, not only at an international level but also by the UN Special Rapporteur, it confirms to everybody what everybody’s been saying. So it puts the government in a spot, in the sense, that not only do Kenyans know that the police have been killing Kenyans extrajudicially without the proper process, but now also the whole world knows that this is a government that simply doesn’t care for life. Although the problem isn’t new, it’s useful that it has come out now and after concerted efforts and a push by Kenyans to have this issue dealt with. The police, even though they are combating crime, whatever they’re doing, have to obey the law: There’s a process to it and once the police begin breaking the law like any other criminal, then they fall into the same category of ordinary criminals that break the law.

PAMBAZUKA NEWS: While you were chair of the Kenya National Commission for Human Rights, I recall you published a report – just before the 2007 elections – claiming that there had been more than 500 extrajudicial killings by the police. How far do you think that report influenced the UN special rapporteur’s decision to carry out an investigation?

MAINA KIAI: I don’t know, but I only know that he certainly saw it, and I know that he read it and it was a very concrete report. It was based on facts. We tied – or linked – the dots together, if you wish. There was real evidence about it but, most of all, one of the clear things was the admission on national television, in September, by the then minister of foreign affairs, Raphael Tuju, basically saying that the government has killed off 400 or 500 youth and that nobody’s saying anything. So there was an admission from them. It’s only that it looked like the admission was done by mistake, or by accident, by the minister for foreign affairs. But we got it. And so, we had evidence tracing bodies that had been put there. We had evidence tracing people who came to tell us that they had seen their relatives being abducted and the next time they saw them, they find them dead, and had been put that way by the police. There was a systematic pattern in the manner in which they were being killed and there was a clutch of silence, there was a whole sense of fear. And because the government was using the rationale that they were dealing with crime, with this illegal, militia force called Mungiki, there was a sense, first of all, of fear but there was also a sense amongst Kenyans that, ‘Hey! You can do whatever you want to get rid of crime and get rid of these guys.’ But there was no way of knowing whether the 500 kids, the 500 young people, were all Mungiki. Nobody knows for a fact. I think that in the investigations that we did, I suspect that easily half of them were simply poor, young Kikuyu who were being extorted. So we were basically saying, ‘Well, we are not supporting the Mungiki, we are not saying they are doing the right thing but surely the rule of law must be obeyed and a process to determine whether these guys are Mungiki or not must be fair. But we can’t have the police acting as the investigator, as the arrester, as the judge, the jury and the executioner all in one because that, then, is when you have a police state. So these were the arguments we were putting out. And we did send the report to Professor Alston and all the evidence we had. So whether he relied on it, I don’t know because he works independently of any institution and he is an independent special rapporteur. But I do know that we had very strong evidence in the report on the extrajudicial executions.

But let me say that this is not a new thing. In the nineties, this was the constant approach of the state. When they found people who they called ‘criminals’, they executed them. At that time I was working at the Kenya Human Rights Commission, the NGO, and again, we documented case after case after case where the police were just shooting people. The evidence that we were getting, which we could not verify then, was that oftentimes the police were killing criminals, yes, but these were criminals who had links with the police. What they were doing, essentially, was killing the evidence that linked the police as criminals with these guys. So when a criminal became too bigheaded, he wasn’t giving the right share or not enough of the share of the loot, they just killed him. So there was a lot of stuff there and it really comes down to what it is: That if a government is going to govern well and run the federal state, it must be able to show the evidence and it must be able to obey the law. Now, my view is, and this is a very unpopular standing in Kenya – because of crime and insecurity people would just like the problem dealt with whatever way you want – but I’ve always said that if that is the case, then let us simply change the law and make the police the judge, the jury, the executioner and eliminate the entire judiciary, because you don’t need it. But nobody’s willing to do that. They seem to want to give unilateral, illegal power to the police to acquire and kill people.

PAMBAZUKA NEWS: So, in your view, has the situation worsened in terms of extrajudicial executions since your report in 2007?

MAINA KIAI: No, I don’t think that it has actually. I think that the report, because it has raised the alarm, it has actually reduced the killings. I mean, there was, like, a spurt of them in 2007. In 2006 a little bit and then in 2007, they just seemed to rise up. In 2008,a lot of issues then were run on the election, so there are cases where you might argue that there were extrajudicial executions by the police, but there was also a trend going on in Mount Elgon against the Sabaot Land Defence Force. There were cases in Mandera and Eldoret.

So there have been cases where the security faces became a law unto themselves. What we saw, in terms of the Mungiki assault, was that the police then changed tactics. Rather than shoot them, they began to behead them, they began to strangle them, they began to cut them up – so that they began, in a sense, to pick up the same methodologies of Mungiki in order to say that it was Mungiki killing each other. That, again, was revealed and that was also highlighted in the report.

Of course then we got the witness who came out, who was part of the squad, who was a driver in the squad, as a whistleblower who came and said, ‘This is what they have been doing.’ So it just changed everything in a sense. As you know, in October the witness was killed by the police, and the case has never been solved. But I think the constant revelations help.

Clearly, the internationalisation of the issues also helps because we’ve had governments and we have a government in Kenya that simply don’t seem to regard the views of the people. They care much more about their ‘international standing’ and where they are internationally. So, they seem to respond much, much more, much faster and much more categorically when there is international attention on issues, and that seems to be the primary motivator for them to stop doing things.

This was the same thing that happened, if you remember, in the nineties on torture. You know, there were all the cases of MwaKenya torture in Nyayo House but until the special rapporteur on torture, Sir Nigel Rodley came to Kenya and revealed it did the government actually reduce dramatically the torture it had been doing. So it is one of those strange things where a government elected by the people does not respond to the people themselves but responds to what they call the ‘international community’.

PAMBAZUKA NEWS: You’ve used the term ‘impunity’. Has anyone been held to account as a result of the UN special rapporteur’s report?

MAINA KIAI: Not yet, but I think this is a process which we are going through in Kenya and there are always attempts to cover up. But what we keep saying is that if nothing happens then the culture of impunity will not only survive, but it will become even more entrenched and these things will keep happening.

Now there was a case, if you remember, of the son of a former MP who was teaching in the UK – he was a law lecturer in the UK. He was shot in a fight in a bar and the policeman who shot him then went to the police station and wrote that he shot somebody who was suspected to be a Mungiki. But for the fact that this was a middle-class Kenyan, but for the fact that his father used to be an MP and has influence, this was exactly the same way that police had been dealing with ordinary, poor Kenyans. But, because he had a profile and his father was somebody important – because he was a PhD from Sheffield University – this became a big case and this policeman has actually been taken to court.

But this is one of the arguments that we kept making and which we should keep making; that in Kenya, if you are poor, if you have no connections, if you have no contacts, then in killing you, well, your life is almost worthless. Anyone can kill you and say you are Mungiki. Anyone can kill you and say you are SLDF (Sabaot Land Defence Force), and that’s the end. But if you have a profile, an education, you’re the son of somebody important? Then there will be accountability. There is a duality of law that we must stop. The law must be the same for everyone.

PAMBAZUKA NEWS: The press has highlighted another event: The handing in of the so-called envelope by Kofi Anaan, the former UN secretary general, to the International Criminal Court. What is this envelope?

MAINA KIAI: Well, the envelope is a list of names, but it’s not just an envelope. There actually are a number of boxes of evidence that accompany the envelope, so what was handed over to the ICC wasn’t just an envelope with a list of names but also the boxes with the evidence.

PAMBAZUKA NEWS: A list of names of whom?

MAINA KIAI: They are the names of those who bear the greatest responsibility, as investigated by the report. We are so used to, in Kenya, having whitewashing coming out of commission reports and yet here we have a report, which was quite damning in its content. What was the response of the government and why do you think the Waki Commission was able to be so open in its condemnations?

MAINA KIAI: Well, I think you’re right, that it was a surprise because all of us are used to having very bland reports. And if you might remember, the Kriegler Commission report [pdf 798kb] was quite bland, it didn’t give anything new to what was already known. And they refused, in fact, to investigate who was responsible for the mess that led to the post-election violence, saying that there was enough mess without adding anything else. And they didn’t find it necessary to investigate the mess at the Kenyatta International Conference Centre, at the tally centre (where the final controversial announcement of the 2007 presidential election results was made).

Well, was it a surprise to see the report of the Waki Commission? I think absolutely. It was because of the composition of that commission – it was a very small group, only three people – and they were three good, competent people. They had an ex-policeman from New Zealand. They had Judge Waki whose integrity is beyond reproach in Kenya. And they had Pascal Kambale from DRC who has been a human rights investigator.

So putting these three people together, mixing up their talent, and then add to that an excellent staff, an excellent secretary to the commission, George Kegoro, who comes from a human rights movement. I think all these things played a tremendous role and because of the kind of people that are there, they opened up themselves to all sorts of interventions from government, from police, from survivors and victims, from the civil society… You know, in a way that was never done before.

I think that what was different was a completely different approach. When you talk to Judge Waki, he says that he believes that there are judges in Kenya who can do similar things. But he says that they should never be left to work by themselves. That is why he proposed in the special tribunal that there be one Kenyan judge, who chairs it, plus two non-Kenyan judges. And he reckons, again, because of the international scrutiny and the international input that is there that the Kenyan judges will then do the right thing; that they have the capacity. It’s just that sometimes they get to fear that there is interference by the state. But when there is an international presence, there is a lot less interference than there would otherwise be. Again, our government fears international outcry and they don’t like it at all.

But I also think that, perhaps, there was a sense of the moment that Judge Waki in his esteem came to, in that we have never seen such concerted, brutal killings in Kenya in a very long time, in so short a space of time that we had in the post election period. I think there was a sense that history was watching them and that they needed to match the sense of history that was there for them. So, it is a whole combination of things. There was a lot of support, intervention and engagement by the civil society with the Waki Commission – very, very different from the Kriegler Commission, whose approach was very standardised in a normal Kenyan way.

So the approach made a difference, the way they did things made a difference, the people who were there made a difference, the mood of the country made a difference and I think the sense of history made a difference. But will this be sustainable? Will this be a pattern we see? Who knows? I think a lot depends on what actions are, or are not, taken from the Waki report and that will tell us whether we will revert to business as usual or the Waki style and approach is a turn in approach in Kenya’s history.

PAMBAZUKA NEWS: Given that we do have judicial competence in Kenya, what is the rationale for the submission of this envelope and evidence to the ICC rather than to a body in Kenya to take this evidence?

MAINA KIAI: It’s that there is individual competence and individual capacity but we don’t have institutional capacity and institutional competence. That is what we have to distinguish between and that given the way the government has done things and given the fact that even after the election there was no one who believed that the courts would be able to find justice on the elections and the manipulation there. And the fact that historically nobody has confidence in the judiciary.

We know that the police are completely incapable of carrying out proper investigations. This is at an institutional level. Maybe there are one or two, or five or six, policeman who can, but you can rest assured that on issues that have such linkage to people in power, the most competent people will not get a chance, will not be appointed to handle these matters because they are too ‘independent’.

So these are things, then, that make it clear that our institutions have really collapsed and that they have collapsed for a number of reasons. One is the way in which institutions are formed, who appoints them, and the methodology of how they operate.

The Prime Minister consistently has been saying, over and over, that we have a colonial police and that it’s incapable of protecting Kenyans or of carrying out the investigations. It’s something that we all know, that our approach to the police in Kenya is to run away, to fear them rather than to work with them.

When you have a police force like that, which is highly controlled by one person who makes every decision about who to transfer when and where, and when there is a reward system that rewards you if you play their game, then it makes a mess of everything. So the idea of the ICC is really a reflection of the fact that our institutions have collapsed. It’s not a reflection on the competence of individuals. We have to find a way to rebuild those institutions. We can only rebuild these institutions by, literally, cracking them open as they exist now and changing the way they are formed.

This has been historical. In the eighties, when Judge Norman Dugdale was the gatekeeper for any matter pertaining to human rights or justice in the courts in Kenya, he never did anything. His job was to make sure that things didn’t get addressed. So I’m sure – though I never met him – that he is an intelligent guy, but he decided that he had a role to play in terms of supporting the government. That, again, is one of the things: When people are appointed and have links to those who appointed them, they have debt to them, then it becomes impossible to have institutionally a legitimate organisation that can do the work.

Now, if we are going to do the investigations and prosecutions in Kenya, without doing it internationally, we would have to, first of all, reform these institutions and then do it. This type of reform would take three or four years because there’s going to be resistance, because the people who enjoy and benefit from our messed up institutes, as they are, they benefit from it and would like to keep them as they are.

As you can see from proposals for reform presented by the parties, they are basically saying, ‘Keep things the same as usual, keep things as they are. Make the presidency all imperial,’ says one side, you know? The other side says ‘Make the prime minister all imperial.’ But nobody is saying, ‘We’ve got to reduce the power in these positions. Move them to the checks and balances and then we, as Kenyans, can have confidence.’ We are still operating under the notion, well at least our political parties and our political leadership are, that the big man makes the country; it is not the institutions that make the country. As long as this goes on, it becomes completely impossible for us to ever see the end of impunity through the national domestic systems that exist today.

PAMBAZUKA NEWS: There are many people who feel that the International Criminal Court is in danger of losing its credibility because it has focused primarily on bringing Africans to trial. How far do you think the submission of the envelope to the ICC on the Kenya case is likely to be affected by these perceptions?

MAINA KIAI: I think that you will find that the damage to the leadership of this country and the credibility of the ICC is being done by African leaders who are the ones who want to continue impunity, not for the African people. In the Kenyan case: Poll after poll has been consistent in showing that Kenyans as a people have confidence in and want the ICC to intervene. Now, if you look at four cases before the ICC, three of them have been submitted by the African governments themselves: Uganda, Central African Republic and DR Congo. They submitted, they referenced, the cases to the ICC themselves. In Sudan, the Darfur, it is the Security Council who referenced the case to the ICC. It is a bit unfortunate for people to then, in fact, say that it’s focusing on Africa. We have submitted ourselves to the ICC and at any rate, as well, there is the legitimate argument that because the institutions in Africa are the weakest in the world in terms of justice, it is not surprising that cases from Africa will go to the ICC because we don’t have the institutions to domestically deal with these things.

Now, in many parts of the world when there is a crisis like this, one sees domestic remedies being put in place, like Abu Ghraib in Iraq when Americans were torturing Iraqis or in New Guinea, or here in the UK, when a policeman shoots somebody. You see an instant domestic remedy. You see it, definitely, the domestic remedy is instituted and national accountability is counted as wacky.

In Africa we don’t have that, so it’s not surprising that these things will happen and that Africa will be a focal point. Now remember that it is African governments themselves who have submitted themselves to the ICC. Nobody put a gun to them and said, ‘Quiet and sign and ratify.’ They did it voluntarily so it is now when they think, ‘My goodness, this thing can work,’ that the leadership in Africa is saying, ‘Hey, we don’t want this, it’s going too high, it’s going to the level of presidents and in Africa the presidents are gods. They rule until they die and at the minute, they don’t think they’ll die because they’re gods. So, when it’s coming to the end, they start thinking, ‘Hmm, this thing might touch us, though in the beginning we thought this might be useful.’ Then they begin retracting, saying, ‘Let’s move back.’

And so we all, as Africans, have to be very, very careful that we don’t fall in the trap where our ‘pride’ comes before us. This isn’t an issue of pride. This is an issue of finding justice for those victims and survivors who have gone through so much pain, who have had relatives killed, who have been raped by troops and raped by people at random who get away with it. This is what is core, we must not lose sight of that. It’s not about our pride. It’s not about feeling that we are victim because it is our own people who are doing these things to ourselves and we are unable to hold them to account ourselves because we do not have the domestic infrastructure to do so. So, when it comes to that and we submit ourselves to the ICC we should let it go.

Hopefully the lesson that we will be learning is that rather than submit ourselves to the international community we should, like other countries, build domestic structures to deal with these things ourselves in our countries. That is absolutely the sure-fire way but we have got to build them. We have to build them so that if a policeman shoots someone there is immediately, at least an internal investigation within the police or somewhere to ask the question, ‘Was that a legitimate shooting or not?’

When there is violence and conflict and something is happening, we should be able to go back and say, ‘Let’s hold these people accountable for the gang rapes and the mass rapes, the tortures and the killing.’ If we do it ourselves then we won’t need to go crying and saying that the international community and the ICC is hurting us. This is a challenge to us and we should jump to the challenge. Instead of saying, ‘We should get rid of the ICC because it is hurting us,’ we should say, ‘We should build domestic structures that can end impunity.’

PAMBAZUKA NEWS: All the evidence of the post-election violence indicates that it was state forces that were mostly involved in killings and crimes against humanity. There is a chain of command and that chain of command ends with the president. What would happen then, tomorrow, if the ICC decides, like it has in the Sudan that the current president, Mwai Kibaki, should be brought to trial? What will be the political implications of that?

MAINA KIAI: I think that no president has, in his job description, the killing off of ordinary citizens in society. Accountability should be at any level, at every level: At the bottom those who actually do it and also at the top, those who order it. Kenya’s situation is actually very interesting because, in fact, the minister in charge of the police is actually a minister of state in the president’s office and so, you’re right, the substantive minister for security in Kenya is the president himself. Now, if the evidence leads to the president and it looks like he’s going to command responsibility, he was responsible, then let justice take its course.

Part of the problem we have had in Africa is that our presidents have been held to be above the law and the rationale in the sixties during independence was that we needed somebody to hold us together, a unifying force. If you remember, during the eighties and the nineties Moi kept saying that he was that unifying force: His office and himself personally were a unifying factor for Kenya. Therefore he should be respected and be able to do anything he wanted. But once these leaders break the law, it’s out of their jurisdiction. It’s out of their mandate. They are now criminals like anybody else and they must be treated as criminals like anybody else. Otherwise Africa will not move forward to where we want to go.

Politically, of course, any head of state is very able to marshal resources and support, to mobilise people; To be able to support them and move against them. We saw that, in Liberia, with Charles Taylor and the special court in Sierra Leone. But, it is incumbent upon us as Kenyans and the international community as well to say, ‘If this is where the evidence has gone, let’s follow it.’

Having said that, I think the Kenyan case is unique in a number of ways. Yes there was the involvement of the state and you can see it very clearly in parts of the country. But there was also involvement of ‘ordinary citizens’ in atrocities that, for many of us, seem to fit [the definition of] crimes against humanity. It is incumbent upon the ICC and on the ICC prosecutor that all those responsible for atrocities are held accountable and not just some.

So it is easy to look at in terms of the theatres of conflict we had during the post-election violence where we had killings in Eldoret, Naivasha, Kisumu Nakuru, Mombasa and Nairobi. And then follow that through and see who could have been responsible. If you have the evidence, then charge people. If it means waiting three weeks or one month until you have evidence for all of them so we don’t rush the indictment, so there is a joint indictment, all the better for us, politically, in any society.

I think that if I was the prosecutor that’s how I would do it. I would say there is clear evidence of crimes against humanity that cut across every side politically so let’s get all the evidence that can warrant indictment for all those theatres and then we can move forward. If that happens we will reduce, very much, the potential negative impact that these indictments could have because it’s hard then to say, ‘Well you’re only picking me and not the other side.’ Therefore political support is neutralised because everybody can see that every side has been indicted and that every side is being held accountable. If it happens, it will make us move forward way faster than you can believe.

PAMBAZUKA NEWS: One of the promises made by, what some people call, the Government of National Impunity, after the post-election violence was the formation of a Truth and Justice Reconciliation Commission. That had been delayed for some time and then only very recently it was announced that this is to go ahead. What is your view of this?

MAINA KIAI: I think it is a necessary instrument for us to unpackage especially the history of violence, conflict and human rights abuses that have happened in Kenya since 1963. But I think it would have been best when there was a real transition in Kenya in 2003 and 2004. As you note, truth commissions are really transitional justice mechanisms and they are best placed when there is a transition and there is a genuine effort to break with a past and move ahead and that therefore we can then unpackage the history and come up with a narrative that makes sense to all of us and that we can agree upon about what happened, that we can all agree upon, that we can then say this is all about us in that form.

PAMBAZUKA NEWS: One of the striking things about Kenya is that precisely in that period, 2003, 2004, 2005, we saw the formation of consciousness on a national level. People were proud to start calling themselves Kenyans; people were wearing the Kenyan flag, people had badges and hats and caps and t-shirts with the Kenyan flag on it. There was a pride in that. What I find quite striking now is that this has now almost totally disappeared, except amongst a small group of activists. Instead people define themselves by their ethnicity or tribe. How do you account for the politicisation of ethnic identity in Kenya today?

MAINA KIAI: I think it is consistent with how our leadership since, and even before, independence has played the political game: That to maintain power they have to focus exclusively on ethnic identity as the only thing that counts, and therefore you get support and you get blind support to do whatever you want. I think that the shoe fell for the NARC government of 2003 when it, itself, got involved in corruption, and it was found out in grand corruption with the Anglo Leasing case.

When they were then discovered, they thought the best way to marshal support… Remember they had been elected on a zero-tolerance agenda on corruption. When it was found out that they actually were as involved in grand corruption as Moi had been, they thought the best way to maintain political support was to ethnicise everything. They began ethnicising their political support, work, appointments and other things. As that then happened, it became clear that these guys, because of their declining legitimacy and because they have failed in terms of what they said they would do for their country, they went back, as fast as they could, to the tried and tested methodology of Kenyatta and Moi of using ethnicity.

That has then had an impact on the way we go. So it really is because these are governments that are not interested in the public good, but they want to stay in power and they think then that the best thing – because they have no public interest approach – is then to say that they have ethnic interests.

Some of the words coming out, if you remember, were that they were involved in grand corruption in order to be able to finance the next campaign. That whole sense of elections and staying in power is then seen as: It’s good for us, it’s important that we people stay in power because that’s what’s important and then they continue eating and all the things that we want to do. So it’s all about corruption, all about eating, all about keeping as much power as you can.

Of course, once you use the approach of ethnicity you certainly get other people angry and everyone’s thinking ‘maybe the best thing we can do is get into an ethnic cocoons’. Of course, the 90s had a lot of civic awareness and civic education across the country, so people now have a much better understanding of what’s right, what’s wrong.

The election of 2002 was a turning point in many ways because it made Kenyans feel free; that we could actually remove a person like Moi after all that time. That was an empowering spirit that has continued and a sense that, hey, we don’t like it but now we can speak it. There was also a sense in 2003, 2004 of openness and that you could now speak without fear, there was a sense of freedom in terms of freedom of expression and association. That then engendered a sense of resistance. But unfortunately the resistance has followed the pattern that has been set by the politicians which is that of ethnicity. I think that’s where the hassle is.

So yes, there are now a small group committed to a national platform and a national agenda. Most people have said that if this is the way to power and the way to eat is through ethnicity then we’ll do the same. This is part of a vicious cycle that’s ongoing in Kenya that has to be broken at some point. We had a great chance to break it in 2003. I think the Kibaki government lost the plot and lost that chance. In fact, that whole sense of disappointment, the hope that was in Kenya in 2003 was absolutely palpable. We thought, ‘We can now do it, we can move forward.’ That destruction of hope and the throwing of it into the trash bin may well be one of Kibaki’s most significant negative legacies he’s going to leave to the country.

PAMBAZUKA NEWS: Do you see ethnicity as being a major factor in the coming years?

MAINA KIAI: I think it will be. I think that we have come to a point where it has become so open and so frequent that it will be. I think that the challenge now is managing and dealing with it so we can come back to at least some ideological or philosophical position that can then create and mobilise people as opposed to ethnic identity being the only thing that we identify with, particularly as far as politics is concerned.

Today ethnic identity has become the only criteria in terms of mobilisation in the political world and campaigning. It’s now going to take us a lot longer to move away from that and come towards a political and ideological model for politics. We have been taken back dramatically and we can’t pretend it isn’t there because it really is. Even though we want to have national platforms (and they are national issues) to cut across ethnicity.

The poor keep getting poorer, they are the largest group, yet we don’t seem to be able to organise people around the concept of getting out of poverty. We don’t seem to be able to organise people even in other areas. So it is work that we have to do and the last three or four years have taken us backwards. We have to confront it. Probably the best way to confront it, right now is, within the ethnic groups – to begin a process of challenging the orthodoxy within each ethnic group because what you’re now getting to is the sense of a few men who seem to control an entire ethic group and what they say moves the entire ethnic group. Everyone just follows without thinking. Their personal interests are presented as ethnic interests, as community interests, and people follow. So we’ve got to break that by challenging internally these ethnic chiefs who, in my opinion, are very close to becoming warlords and once we can do that we’ll begin the process of nationally organising again.

PAMBAZUKA NEWS: Are there any parallels with neighbouring Somalia?

MAINA KIAI: Yes, I think there are. Once Siad Barre began topping himself up with his sub clan and then began killing people from other sub clans who were seen as opposition, there was immediately affirmation and the rise of the sub clan as the key identity issue: It doesn’t matter about anything else. All of a sudden it was me and my sub clan against you. It doesn’t matter that we are both poor. And really our challenge is not the ethnicity of the other but the fact that the leadership that is purporting to be the leadership of the sub clan are all in it for themselves. So there is a lot of work to be done.

I think that that is how civil war begins: When ethnic identity becomes the most important identity and you forget to challenge those so called ethnic leaders and they can get away with anything because we are put in the position of ‘if we don’t band together they will kill us, if we don’t band together we will lose’. So there is a herd mentality but there is also a defensiveness that comes along and that is what we have to crack: That actually, you know what, poor people, be they Kalenjin, Indian, Somali, Kikuyu, have a say. But it’s not about these leaders who make it feel that they are killing us because we are Luo, they are not giving us anything because we are Kikuyu, they fear us because Kalenjin, they don’t like us because we are Kamba . It’s a very easy sentiment to rally around and it’s what we have to break. But again, the hassle with it for many of us in Africa is that this was a tried and tested approach of the colonial government that ruled Africa. They quickly divided us into ethnicities and made us hate, fear, be sensitive or suspicious of each other in the divide and rule and for them that was just fine. But now what we have done in our independent government is simply reproduced that approach and perhaps elevated it to a much, much higher level. So in a sense what we are going through is that we have got a political class in Africa who are essentially as colonial as colonial can be and that’s where the problem is.

PAMBAZUKA NEWS: So to conclude, are you optimistic about the coming years in Kenya?

MAINA KIAI: I think the jury is out to be honest. Generally I’m very optimistic about the processes in Africa because when you go around the country and you work with ordinary people and meet them, you do get a sense of hope. But this is the first time, at least in terms of Kenya, that I’m not as hopeful as I once was before, because I’m travelling around a lot, I’m talking to many people, and what I am hearing are things that make me worry for the future.

But there are things that we could be doing. The first of course is the impunity question and dealing with that impunity while the second bit of it is the political class understanding, if they are able to, that the country and the people have really moved on from where they were before. If we continue to trust our leaders without understanding that they keep focusing exclusively on themselves and their own interests, then this will only lead to chaos and conflict. And the third thing is that if civil society can get the space without the fear of execution or arrest, then there is a hope that civil society can get out and begin trying to mobilise people across ethnic lines on the basis of shared interests.

If those things happen then maybe we will survive. But I suspect that if they don’t happen, then we will be in a crisis in the next few years. I’m looking at a number of events to see how they’re carried the news today in Kenya. There have already begun to be issues around the forthcoming census and concern about how the enumerators are being hired and how corruption is beginning to slip in. If the census that is coming up in August is badly handled, badly mismanaged, even administratively without being politicised, then that is going to add to the tensions in the country. Then we have the referendum next year on the constitution. Again, if that turns out to be divisive then we are basically saying that we haven’t learnt from the past and we are going to be in a crisis.

So the bulk of our challenge really lies with our existing political leaders to understand that they can’t manage the situation anymore. They weren’t able to manage it in 2007 and as time goes on, that era of managing has now ended. They want to keep us where we were and to keep doing things as they have been doing. They need to understand that we have changed and they need to change with us. Otherwise they will lead us down the path of chaos and conflict. That’s what the challenge is. Will they get an epiphany? I doubt it. But you know what? It is also the work of all of us, wherever we are, whether we are in Oxford or Kenya, to begin to think hard about how we can marshal the forces of reform, change, democracy and social justice together so it can be a force against the existing political class, knowing full well that that class will of course try to disrupt any new third, fourth, fifth force, any new x-factor that tries to change anything will come across a lot of opposition from the existing political class. And they have the means to attack, through the police and other forces.

So the job ahead is hard and I think we shouldn’t be pretending anymore that it will be easy or done overnight. I think it will be a hard job and that there is a lot to be done and I think many people are waiting for somebody to mobilise people around the reform movement, the democracy movement and say, ‘Guys let’s pull it together, let’s work together. Let’s get an agenda, we can all work together on. This isn’t about you, it’s about the country, it’s about the survival of the country at this point.’

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* Maina Kiai is the former chairperson of the Kenya National Commission for Human Rights.
* Firoze Manji is editor in chief of Pambazuka News.
* Please send comments to [email protected] or comment online at Pambazuka News.