Many were quick to write in adulation that the agreement signed by Kenya's President Mwai Kibaki and Prime Minister Raila Odinga on 28 February 2008 to share, among other things, executive power was the answer to the conflict that had engulfed the country since December 2007. But was it? Evidence of what has happened in Kenya subsequent to the enactment of the National Accord suggests that the chasm that separates the country is one that requires a fundamental redesign of the state through substantive constitutional arrangements, strong human and minority rights guarantees and transitional justice processes supervised by the international community. The establishment of a committee of experts to complete the drafting of a new constitution and a soon-to-be constituted truth commission represents opportunities, the failure of which will spell doom for the country.

45 YEARS AT WAR

As the myth of Kenya's ever having been an island of peace in a sea of turbulence is dispelled across the continent thanks to the mayhem that followed the botched 2007 December elections, the killings in cold blood of NGO activists, and the ongoing police progroms in Nairobi and elsewhere, many, including myself, are confronted with the real possibility of entertaining a converse conclusion, namely, that Kenya has in fact been a country at war since her independence some 45 odd years ago. In reaching this conclusion, I join Professor Bethwell Ogot, the chairman of the Moi University council who was quoted in the Daily Nation in Nairobi as asserting that the current crisis has merely exposed any pretensions of a peaceful and united polis that we hitherto held out. My conclusion also seems to resonate with the views of Professor Ali Mazrui of New York State University in Pambazuka News – Africa’s foremost social justice magazine – when he argues that 'The Kenya presidential elections of December 2007 are potentially the most damaging episode to national unity since the assassination of Tom Mboya in July 1969'. In reaching this conclusion, I further cast my lot with those who would rather address to the bitter gall our murderous past rather than embrace the embalmed patchwork of solutions currently proffered.

A Kenya at war is a view supportable from a scan of the political developments since Britain granted the country her independence in 1963 under a Westminster constitution that had strong features of a parliamentary system of governance. Under this system, the executive power of the state was shared between a prime minister and president, and regional governments played an important role in the political life of the local communities. But this vision of statehood was short lived, a result that has shaped the character and nature of governance in the country, transforming the quest for political power into the singular pursuit of the 42 communities that compete for space over the Kenyan territory. The thesis elaborated by Michael Foucault that power is war continued by other means comes alive in the Kenyan context. There is a latent war which pervades Kenya’s body politic, a contest which could only be mediated by way of more inclusive democratic institutions. In the absence of deeper democracy, the conflict matures into a patent form, and violence and destruction, in the external sense, become manifest.

In the case of Kenya, three fluid phases of violent contestations can be discerned. These conflicts have revolved around questions of statehood, constitutionalism and democratic legitimacy. The remarkable observation is that none of these conflicts have been substantively resolved, so that the cankerworm of deep resentment has continued to fester even when the externalities of the conflict have more or less vanished.

First, while the prospect of independence for Kenya in 1962 was awaited with much promise, it was an issue that communities in northern Kenya received with much trepidation, leading to the first conflict in 1963, the Shifta War, pitting Kenya’s newly independent state against a versatile community seeking self-determination through enosis with Somalia. This was largely because the communities, particularly the Somali, were struggling with an imposed colonial border which had dismembered the community, dividing its members into three different countries: Italian Somaliland (present-day Somalia), Ogaden (in Ethiopia and present Somaliland), and French Somaliland (present-day Djibouti). This colonial construct had wreaked havoc on intra-community relations as well as on their pastoralists’ enterprise. In their quest for a pan-Somalia identity, the desire of the people of the Northern Frontier District was to negotiate for reunification with their motherland in rejection of the ‘Kenyanese’ identity being imposed of them.

This ‘rebellion’, which was crushed by Nairobi nearly seven years later, left over 10,000 inhabitants of the region dead and the livestock economy devastated, according to Korwa Adar’s book 'Kenya’s Foreign Policy Towards Somalia: 1963-1989'. Moreover, the underlying issues around a fear of the marginality of the region, which formed the raison d’être for the Shifta War, materialised through the developmental policies pursued by Kenya’s post-independence governments that have entrenched bipolar economic development between the 'high potential' (the wet highlands around Nairobi) and the 'low potential' (the rangelands of northern Kenya and some parts of the Rift Valley). The issue of statehood, which was central to the Somali claim, was never subjected to national dialogue, but instead mediated through the application of brute force, hence the country’s present inability to address the re-emerging questions pertaining to identity and nationhood in the country. The recent military crackdowns in Mt. Elgon and the Mungiki brigands in central Kenya confirm that the modus operandi for conflict resolution in Kenya has consistently been simple state-sponsored violence.

The second phase of conflicts was largely contested from the mid-1970s to the late 1990s, during which the young state sharpened its appropriation of instruments of repression against those who sought order and a coherent constitutional and political philosophy. The seeds for such dissent had been watered by the expulsion of Jaramogi Oginga Odinga, Kenya’s first vice-president, and the dismemberment of regional units of governance in favour of an imperial presidency and uni-polarity. The assassination of the flamboyant Luo politician Tom Mboya and his counterparts Gama Pinto and J.M. Kariuki and the 1982 attempted coup – which left thousands of people dead – followed in quick succession without substantive resolution. The latter, in particular, saw the deepening of intolerance towards dissent and the hegemonisation of political power through the instrumentality of one-party rule. It was also during this period that well over 2,000 members of the Somali community would be rounded up in their villages in Wagalla, Wajir district, and massacred by security forces in 1984 for allegedly supporting the re-mobilising Somali Shifta militia. This Wagalla massacre remains unresolved and thousands of people are still unaccounted for, according to research conducted by the Centre for Minority Rights Development and the Truth Be Told Network. A 1986 Human Rights Watch report entitled 'Kenya: Closing up Freedom' also documents this massacre.

With a collapsing economy, a growing youth population and the reduction of political space, the quest for fundamental changes in the country would intensify, taking strength from the sails of the global collapse of communism, which exposed the imperious conditions of governance in Africa, hitherto cushioned by the West only for the purpose of sustaining their geo-political interests. The multiparty wars, largely constructed as demands for good governance and democracy and steered by civil society movements and epistemic communities, notably the Law Society of Kenya, would sweep through the country like an angry tsunami, reopening the political space but raising the tides of ethnic hate that had subsisted in a subaltern form all through the more tyrannical periods of independent Kenya. In its wake the Rift Valley conflicts, which have been replayed in 1997 and 2007–08, commenced in earnest, leading to expulsions of Kikuyu, Kisii and Luhya ethnic groups by the indigenes of this large swathe of territory that stretches from the Sudan border to the north and the Tanzanian border to the south. The Likoni conflicts in Kenya’s serene coast would be enacted in 1997, visiting mayhem and anarchy to thousands of settler communities along the coast, especially the Kikuyu, Luo and Kamba. Those who documented these conflicts over historical injustices, land and natural resources as politically constructed – including the Kenya Human Rights Commission and Human Rights Watch in 'Playing with fire: Weapons proliferation, political violence and human rights in Kenya' (1999) – would attest to the fact that over 200,000 people were displaced and well over 500 killed. This can be considered the third phase of the conflict, a phase which continues to grow and embolden everyday.

The December 2002 election, which saw Kibaki’s triumphant ascent to power and the vanquishing of KANU (Kenya African National Union), Kenya’s independent political-vanguard-turned-instrument of oppression, was seen by many as an important step towards transforming the country's festering conflicts. This was not to be. Turning trenchant soon after acquiring power, Kibaki would preside over the looting of public coffers and the manipulation of attempted constitutional transformations, leading to the sad rejection of the proposed new constitution at the 2005 referendum. The violent conflicts triggered by the December 2007 elections that continue to date was therefore a continuation, perhaps at a more intense level, of an invidious conflict that has been waged for the heart and soul of the country since her political independence.

WHITHER KENYA?

Be this as it may, it would therefore be crucial to capture the painful power struggles that are currently playing out in Kenya and turn them into a key threshold to reshape the governance framework of the country in a fundamental way. In this Kenya has a lot of precedents to learn from both within and outside of the continent. In the continent, South Africa stands as an apposite example. Years of hate, inequalities and exclusion under apartheid would melt away, albeit slowly, with the enactment of a new political and economic compact by way of a new constitution crafted by the African National Congress (ANC) and the Nationalist Party. Of this, Justice O’Reagan of the South African Supreme Court in 'Makwanyane versus the state' would comment: 'This constitution provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful coexistence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex.' This aspiration remains a guiding principle in the country, in spite of emerging challenging contradictions.

Kenya’s path towards a transformative future has also been illuminated more recently by the new Australian prime minister, Kevin Rudd, who in apologising to the aborigines made the following profound declaration from the sacred podium of parliament: 'We apologise for the laws and policies of successive parliaments and governments that have inflicted grief, suffering and loss on these our fellow Australians… For the pain, suffering and hurt of these stolen generations, their descendants and for their families left behind, we say sorry.' Reed has since backed his apology with actions, particularly, the endorsement of the UN Declaration on Indigenous Rights, which the previous Australian regime had vehemently rejected.

Indeed, Kenya’s dream of a new constitution will become a reality when a penitent apology for the post-electoral massacres issues from the lips of Kibaki and Raila on the first day of seating of the soon-to-be-constituted Kenyan truth commission. But this spirit of truth-speaking and accountability must thereafter reverberate to all and sundry who in one way or another have contributed to the 45 years of waste. On this firm basis of mutual ownership of our despicable and murderous past can a new constitution encapsulating Kenyans’ aspirations and hopes for the future be given forth. For our political leadership to ignore the difficult birth pangs that Kenyans presently endure will be an ignominy undeserving of pardon. Eternal vigilance by the international community and Kenyan civil society must be steadfastly ensured if this desire is to be realised.

* Korir Sing’Oei is a student of international human rights law at the University of Minnesota Law School.
* Please send comments to [email protected] or comment online at http://www.pambazuka.org/.