cc. Following the creation of two commissions by the Kenya National Dialogue and Reconciliation (KNDR) to address both post-election atrocities and historical human rights violations, Ndung’u Wainaina considers the limitations and weaknesses of an amnesty process likely to disadvantage victims in multiple ways. Signed into law with minimal public consultation, the Truth Justice and Reconciliation Commission (TJRC), Wainaina argues, possesses deep flaws that will ultimately block rather than facilitate the accountability and national healing the country so desperately needs.

Ndung’u Wainaina argues that there has to be an unwavering commitment by African societies to human rights - and that part of that vigilance also means protecting human rights advocates who might be under threat from the state or other actors.

Building the rule of law and respect of human rights in a post-conflict situation is challenging. The problems which are borne out of conflict are, notably, the loss of human lives, displacement of the population, destruction of property, trauma, sexual assault and violence. These disastrous consequences contribute to instability and the destabilization of a country. Peace remains fragile. To reinforce the return of stability, specific situational context process must be adopted to include a harmonious balance between the fight against impunity, the necessities to create a solid base for a lasting reconciliation, the respect for human rights and the rule of law. These fundamental issues must be integrated with an equal redistribution of resources and the participation of all. Kenya human rights defenders have faced extraordinary challenges throughout post-independence era yet they have worked intensely and with great courage. But now is not the time to rest on their laurels, as this period of political transition offers both opportunities and challenges for the protection and promotion of human rights; particularly in an Opposition vanquished or demobilized scenario.

Human rights defenders are the experts on the historical lessons and understand current situation prevailing in Kenya. A great lesson has been the importance of a vibrant civil society and media in checking the excesses of ever crafty political class. In the context of current conflict, and the threat to democratic rights, the unwavering commitment by civil society and the media to insist that human rights be upheld demonstrated the significance of these independent voices. A vibrant, diverse civil society and a free and fearless media will continue to be essential in the transition period ahead. It is also essential that, human rights defenders maintain their independence from the political process, and defend the human rights of all Kenyans. Human rights are not political, they do not pertain to only one group or other of society, and a shift in political power must not lessen vigilance of human rights defenders.

An important development we have witnessed during the current political crisis in Kenya is the rising tide of awareness of commitment to human rights by the wider Kenyan society. Though there were cases of serious threats and extremisms, against independent voices of human rights defenders who rose above parochial and partisan ethnic politics. The expressions of social solidarity, of the aims for a more inclusive society which does away with ingrained discrimination, offer great hope and opportunity for human rights in the future. Discrimination on the basis of social orientation and ethnicity must be tackled in the new Kenya. Discrimination against women, which is often multiple discrimination as it is added to patriarchal systems and ethnicity-based discrimination, also needs to be systematically eradicated.

The positive and significant political developments that have happened, including the signing of the Political Agreement and the establishment of a grand coalition government, have raised great expectations, particularly with regard to an end to discrimination, inequalities and impunity. As the peace process advances, the complexities of bringing about such changes, which require political will and the uprooting of deep-seated traditional patterns of prejudices and stereotypes, have become more apparent. The enactment of new democratic constitution and undertaking comprehensive transitional justice policy remains a crucial step toward the creation of a more participatory, inclusive and equal society, but there are still obstacles to overcome in order for that reality to take place. Equally the new government has to make strong commitments to human rights culture. These commitments must be seen through, in terms of policy and action. Though there is continued commitment to human rights standards through political statements, political leadership must ensure that its cadres at all levels understand these commitments and fulfill them. Even if difficulties arise in the political process, there must be no backing away from these commitments to protect human rights by any party.

While there has been established commitment to observe and adhere to the agreement between the government of Party of National Unity[PNU] and the Orange Democratic [ODM], it is essential that the parties move ahead rapidly to establish a credible and strong mechanism to monitor the implementation of the agreement. This must include an effective mechanism for reporting and dealing with violations of the agreement, in order to ensure that problems which occur at the local level are dealt with quickly and fairly before they blow up into larger or intractable problems.

Another key issue for human rights defenders, seeking to consolidate the rule of law in the transition period and for the longer term, is that of accountability for present and past human rights violations. There must be accountability for human rights violations of the past and the present. Without accountability and without justice, the culture of impunity will never end. Human rights defenders shall continue vigorously to call for action to resolve all outstanding cases of grave human rights violations. Families and relatives of the affected should not have to wait any longer to see a thorough and credible process initiated by the State to unmask truth and administer justice. It is legal obligation and moral imperative.

The issue of accountability for violations committed during the conflict and in the past has wider implications. The process of prosecutions, assistance to victims, truth commission, and institutional reform are some of the measures which Kenya should adopt to address the consequences of the post-election violence violations and past human rights violations in order to rebuild a society based on respect for human rights and the rule of law. It is important, that Kenyans have an open discussion about what measures are needed. This discussion itself must be inclusive, and especially bring in people from marginalized and discriminated against groups, victims and women. One of the important lessons from other countries which have come out of conflict is that such transitional justice measures, in order to be effective, need the pro active engagement of members of civil society at all levels.

The hopes of Kenyans are very high, with constant calls on leaders to ensure that the political process ahead respects the aspirations for a fairer society, one that respects the human rights of all. Fulfilling these hopes will require commitment and hard work from Kenyans from all walks of life. The human rights community of Kenya with their regional and other international friends must remain vigilant and maintain its integrity and independence. It will need all to work hard to ensure that the political process is effective as a step toward a permanent end to perpetual conflicts in Kenya and that the political process respects and protects the human rights of all Kenyans.

Another prerequisite for creating a climate free of fear, impunity and intimidation will be the commitment of all parties, organizations and their constituencies to respect the peaceful views and progressive activities of others. Building trust and dialogue must replace threats, intimidation and acts of violence to resolve differences. Security system must also take effective measures to end abuses by its cadres. Transforming a climate of impunity into a culture of accountability will be essential to a successful transformation and sustainable peace. The lack of progress in addressing impunity is deeply worrying. It will require political will, courage and determination to move the process forward, but it is one that cannot wait. The political ceasefire agreement still provide a historic opportunity to create a fully inclusive and democratic State which protects the human rights of all and enables all Kenyan people to participate equally and effectively in society governance. It is the responsibility of all parties and Kenyans to ensure that this promise is fulfilled.

*Ndung'u Wainaina is the Director of the International Center for Policy and Conflict (www.icpcafrica.org)

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Karl Marx said of Louis Bonarparte (September 2, 1778 – July 25, 1846) that “men are makers of their own history but they do not make it as they please, they do not make it under circumstances chosen by themselves but under circumstances directly found, given and transmitted from the past”. This statement represents the political and socio-cultural reality of the Middle East and its long but protracted violent conflict. The fact that the social groups involved tend to define themselves by their history sets them apart from each other. In this situation, unless plurality of differences is recognized as a positive aspect of today’s geopolitical realm - as opposed to a Westernised attitude of colonialism and conquest - the struggle for racial and socio-cultural equality will continue taking a militarized form.

Western civilization and economic imperialism expansionists should come to terms with the fact that social fragmentation is a way of giving voice to the exclusion. In this instance, Middle East people and their counterparts in other developing countries are fighting against racial domination, militarized economic imperialism and cultural annihilation. It is a people united to recapture and occupy their rightful space to speak for themselves in their own voice and have that voice accepted as authentic and legitimate. The rationale advanced here is that pluralism and assertion of difference helps to undermine the grip of the dominant groups over political and social discourse.

Contemporary South Africa was negotiated and built on this reality even though there does still exist severe socio-economic structural disparities. Apartheid, which became official policy in 1948, was the product of the fear of a small privileged group. Ironically, just as is happening in the Middle East, the same Western capitals that condemned apartheid facilitated the trading of multinational companies with the apartheid regime.

The Middle East conflict is becoming increasingly dangerous and inflammatory, jeopardizing and endangering regional peace and security. It is significant to note here that America and its Western allies can easily use the so-called Iran link with the Hezbollah and Hamas movements to launch a reckless and ill-advised attack against Iran over Iran’s uranium enrichment programme.

The answer to the Middle East crisis is a political justice based on recognition of the plurality and identity of various groups in the region. Racial dominance, denial of political and economic rights and social degradation exercised by Israel and her Western allies are all measures to safeguard the exploitation of oil wealth by Western capitals and minority interests in the region. The message and response coming out of the G8 Summit and United Nations are just desperate attempts to try to keep the lid on the crisis in the hope that it might somehow go away on its own.

The search for ‘peace’ by Western diplomacy in the Middle East and other flash points has achieved little other than to ensure the continuation of underlying instability. The reality is that none of the so-called super powers currently has the capacity to get control of the conflict in the Middle East. Further, none between Israel and her Arab neighbours can win a straight all out war.

The Iraq and Afghanistan disasters engineered by Western capitals are unraveling case studies of attempts by Western colonial imperialism to disintegrate states for purpose of re-colonization and exploitation. It is the same as in the Democratic Republic of Congo, where Western countries after facilitating genocide for over 45 years, are now busy actively stage managing “democratic” elections to ensure smooth but well controlled political transition.

It is incumbent on the international community to pressurize parties to the conflict to respect the rules of international humanitarian law, to refrain from violence against the civilian population and to treat under all circumstances all detained combatants and civilians in accordance with the Geneva Conventions.

* Ndung’u Wainain is a Programme Officer, NCEC and Director, International Center for Policy and Conflict. P.O. Box 11996-00400 Nairobi. Tel: 4445974, 4446313; email: [email][email protected]

Ndungu Wainaina reflects on the succession politics presently waging in Kenya. He argues that the National Rainbow Coalition (NARC) rose to power owing to the public desire for broad constitutional reforms in the sphere of governance to guarantee among others, human rights. Sadly, the coalition is now disintegrated and concludes that the task of completing the constitutional review and democratic transition in the country remains with all Kenyans.

The Kenyan state is in transition. The upcoming general elections in 2007 and the impending Kibaki succession are wrecking havoc on the political scene. But the agenda for this election is not clear. As of now the country stands between the possibility for progress into reforms and the rebirth of a new nation built on the firm tenets of democratic government and the respect for and promotion of human rights, or regression into the abyss of authoritarianism and bad governance. The 2002 general elections that saw the exit of the Kenya African National Union from state power for the first time in independent Kenya was primarily driven by the general public desire for reforms in governance, constitutional review and human rights spheres. The quest for a new democratic constitutional order was so central that all the political parties consistently promised to deliver a new democratic constitutional dispensation once they ascended into power.

The now disintegrated National Rainbow Coalition (NARC), won the elections on the promise of establishing a new constitutional dispensation within 100 days of getting into office. NARC won the elections, but failed to facilitate the making of the new constitution. This has resulted in a credibility deficit for the new government. Following the removal from government of the Liberal Democratic Party, a key partner in the Coalition, courtesy of the reconstituted cabinet in December 2005, the National Rainbow Coalition seems to have been dissolved. This has had a tremendous effect on the conduct of coalition politics in the country and the growth of constitutional democracy.

Four years after it was elected on the platform of reforms the NARC Coalition has failed to spearhead any of the key reforms that Kenyans wanted. The government failed to manage and facilitate the constitutional review process. Courtesy of its policy of non-negotiation, the government has engendered polarization of the country. Constitutional reform is the greatest casualty of this failure in leadership by the current government. Ending official corruption, impunity, institutional transformation and restoring the rule of law has fallen flat. Instituting a legitimate and radical transitional justice process in order to offer a firm socio-political and cultural framework to advance democratization and human development has been deferred. Continued reference to corruption cases in court is irrelevant as long as no tangible results are evident.

The reform of institutions has been slow, superficial, and misdirected. The conception and institution of the Governance, Justice, Law and Order Sector (GJLOS) reform has presented a situation where the path and direction of reforms has been reduced into a patching up process. Even though the president has insisted that his government is committed to socio-economic reforms to respond to the massive inequalities and poverty, results are mixed. The reported economic growth rate is lopsided in favour of the few big mainstream businesses while disinheriting the largest chunk of the population.

The country, now faced with the upcoming general election, is preoccupied with the intertwined political questions of undertaking a successful constitutional review and governance reforms and the Kibaki succession. Politically, Kenya is only democratic to the extent of regular elections; the government’s responsiveness to the will and the wishes of the people remains very limited. The progress towards democratic governance in Kenya depends more on the capacity of the citizenry to demand and protect their space and not magnanimity of the state.

The task of completing the constitutional review and democratic transition in the country remains with all Kenyans. There is urgent need to establish, focus and strengthen the citizenry into a critical mass that will provide the philosophical, institutional and logistical support to the various initiatives of the citizenry to develop a popular coalition to force and enhance the national drive towards completing the constitutional review and institutionalizing just and democratic governance in Kenya.

The experience of NARC has shown that regime change is not sufficient to facilitate democratic change. It is only right that the general Kenyan populace should in addition to being informed and made aware, be fully included in the quest for a new constitution and democratic order. For this to happen there is great need to consolidate and promote the emergence of a strong constituency of grassroots’ constitutional and democracy crusaders. The population has increasingly lost faith in the capacity of the government and commitment of the politicians to review the constitution and entrench democratic governance. More and more Kenyans are getting despondent. There is evidence that this development is neither entirely innocent nor accidental, but rather a consequence of political elite rigged democratic development.

The country requires the commitment of a core of champions around a common new vision for Kenya. This would guarantee democratic governance and social development. The sole objective of this core would be to drive and establish a new leadership to ensure the enjoyment of democratic governance by all. A large constituency of disinherited and excluded people is not only a great threat to the nation’s stability, harmony and continued existence as a going concern but also potentially the breeding ground for rebellion. The new leadership would usher a unique situation and opportunity of not only establishing a new constitutional order but also putting in place social democracy practitioners as the leaders and governance implementers of long desired changes in Kenya.

This transformative change calls for a core of leaders and citizens who are driven by higher values and aspirations than just material accumulation and professional excellence. It calls for an efficient economy with a human face; a strong political edifice with a human heart. If Kenya is to start dealing with her unhappy past comprehensively and decisively and to build a brighter future for all, then it will require people with a passion to serve and to change things; in the public, private and voluntary sector. It will require men and women with a dream great enough to die for and a vision big enough for everyone to have a part in it. It is time for converting the citizenry from casual observers to major stakeholders in this country. This will not threaten any one but rather secure the interests of even those who have done much to hurt the interest of the citizens and the country at large.

* Ndungu Wainaina is a Programme Officer, NCEC and Director, International Center for Policy and Conflict. P.O.Box 11996-00400 Nairobi. Tel: 4445974, 4446313; email: [email][email protected]

* Please send comments to [email protected] or comment online at www.pambazuka.org

Exploring genocide in the Democratic Republic of Congo (DRC) (http://www.pambazuka.org/index.php?id=29835) and an examination of security and resource issues fuelling conflict in the Great Lakes region (http://www.pambazuka.org/index.php?id=30071) have been the subjects of two recent articles in Pambazuka News. In the third contribution to the discussion of the region, Ndung'u Wainaina examines the challenge of post-conflict reconstruction in the Great Lakes region: “Immediate concerns can be identified as ending existing ongoing conflicts, putting in place measures to prevent new ones, laying the ground for building sustainable peace and planning on post conflict reconstructions,” he writes.

Many people have argued that countries in the Great Lakes region are in perpetual conflict and disintegration by virtue of their ethnic composition. But in some cases, ethnic diversity is actually a blessing in disguise depending on the political ideology and level of societal socialisation, although this does not in any way mean that ethnicity has not caused havoc. Many countries in West Africa and the Great Lakes are however driven to war not due to their ethnic diversity. Other critical factors have contributed to the conflicts in the Great lakes region.

Conflict is inextricably related to poverty and human development. When a whole segment of society is excluded from socio-economic and political activities, there is every reason for that section to group and wage a war for recognition. Secondly, inequitable sharing of valuable natural resources fuels conflicts. It is self-evident that wherever in Africa there are minerals or such other lucrative resources, conflicts are ignited. Conflicts have turned into cover-ups for looting, corruption and supporting local dictatorships by both local and international actors.

Thirdly, a sustainable democracy is about functioning, independent and democratic institutions. People are able to vent their concerns through these institutions. Finally, as argued above ethnic diversity in itself provides little impetus to conflict. However, a polarized society based on other factors is more likely to break into a civil war. Such issues as historical discrimination and grievances, sharing of national wealth, social exclusion in decision-making processes, widespread atrocities against a group at the hands of another etc. can easily spark conflict.

In an attempt to address conflicts in the Great Lakes and Horn of Africa, immediate concerns can be identified as ending existing ongoing conflicts, putting in place measures to prevent new ones, laying the ground for building sustainable peace and planning on post conflict reconstructions. Here the focus should take both national and sub-regional dimensions since as much as the conflict may be internal; it has tremendous cross border effects. Moreover, future political stability and democracy is achieveable via sustainable capacity building of personnel and leadership, institutional transformations, developing progressive post-conflict rehabilitation, a reconstruction and development agenda and the adoption of good governance practices.

A desire for justice and accountability is crucial for the processes of restoring peace, security and post conflict reconstruction in the Great Lakes. Civil society has a great role to play in this process. Addressing atrocities in a time of transition poses a fundamental challenge and yet it is extremely significant in avoiding future conflicts and autocratic dictatorships. Due to the cross border nature of some of the conflicts in this sub-region, the possibility of establishing accountability mechanisms that transcend borders may be an option in the future.

It is important for any justice and accountability mechanisms to be open and democratic through wide consultations with the relevant stakeholders and for decisions to be made in a transparent manner. Further these mechanisms have to be designed in a comprehensive and holistic way. These issues are crucial in avoiding discontent and thwarting any attempts to create an impunity gap. Civil society participation in the pre-transition consultations is fundamental in ensuring that final transitional decisions are not determined and conditioned by parties to the conflict.

Local and regional civil society initiatives in partnership with the international civil society community are very critical in providing technical assistance and expertise to countries emerging from such conflicts. One such role may involve bringing together stakeholders in each country, in consultation with neighbouring expertise for input, to develop an appropriate national strategy of pursuing justice and reconciliation policies as a way of cementing the move to democracy. However, such initiatives should be mutually reinforcing. For practical proposes such initiatives could explore mechanisms for establishing truth about the conflict in a non-judicial fora, crafting reparation policy for victims, transforming institutions, initiating vetting processes and formulating progressive socio-economic programs that guarantee equality and inclusion.

Collaboration initiatives in advancing post conflict accountability and securing lasting peace are an essential component in achieving the implementation of emerging international justice and accountability mechanisms as well as charting national policies and institutional responses. Further, signed peace agreement frameworks have created openings for further negotiations and consultations in stabilizing and institutionalizing the rule of law.

International intervention across the Great lakes region in post conflict situations is critical in providing basic information on experiences and lessons learned elsewhere; capacity building; technical expertise, especially in legal matters; information and database construction; and the mobilization of human and financial resources. In devising post conflict reconstruction programs, international obligations should be observed, particularly in relation to international human rights and humanitarian laws.

In order to avoid accusations that the international community captured the local initiatives, the intervention should be designed to strengthen local expertise and capabilities. The creation of a peace building commission and human rights council within the United Nations framework means more responsibility. For instance, the UN was requested to facilitate transitional mechanisms in the post conflict Burundi situation. As the Great Lakes and Horn of Africa region undergo transition, the civil society role in these areas is crucial, as issues of accountability and justice have become an integral part of the transition worldwide.

* Ndung'u Wainaina is a Transitional Justice Fellow and Co-founder of the International Center for Policy and Conflict, a Nairobi-based Transitional Justice Initiative.

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