Kenya:
Impunity And the Politicisation of Ethnicity
31 July 2009 | Firoze Manji
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interview
the future holds for Kenya. As long as politicians operate under the
notion that 'the big man makes the country' rather than institutions,
cautions Kiai, it will remain impossible for the country to end impunity
without outside assistance.
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 Waki Commission.
PAMBAZUKA NEWS: That is to say, those who hold the
responsibility...
MAINA KIAI: For the post-election violence? Yes. And the list of names
is where there is evidence linking them and that is evidence in the boxes
to show the link. Now, of course the ICC could decide that they won't
do anything with that list and with that evidence. They will go through
the evidence and see if it makes sense or not, but it seems to me, and
from what I know that there was some real, good evidence, taken by
camera by the Waki Commission and in solid evidence.
Now, of course, it has not been tested in a court of law and, as you
know, when you're investigating you don't test everything in a court of
law, but that is a process now for the ICC to continue the investigations
to see where they go to and eventually come up with - if it will do - a
finding that these crimes do fit under the mandate of the ICC and then
take action, if Kenya doesn't take action.
PAMBAZUKA NEWS: Many of us were rather surprised, I think,
by the Waki Commission 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.'
Courtesy
Impunity And the Politicisation of Ethnicity
31 July 2009 | Firoze Manji
--------------------------------------------------------------------------------
interview
- In the wake of a UN report
on extrajudicial killings, the
prospect of intervention by
the International Criminal
Court on post-election
violence and the formation of
a Truth Justice and
Reconciliation Commission,
Maina Kiai, former
chairperson of the Kenya
National Commission for
the future holds for Kenya. As long as politicians operate under the
notion that 'the big man makes the country' rather than institutions,
cautions Kiai, it will remain impossible for the country to end impunity
without outside assistance.
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 Waki Commission.
PAMBAZUKA NEWS: That is to say, those who hold the
responsibility...
MAINA KIAI: For the post-election violence? Yes. And the list of names
is where there is evidence linking them and that is evidence in the boxes
to show the link. Now, of course the ICC could decide that they won't
do anything with that list and with that evidence. They will go through
the evidence and see if it makes sense or not, but it seems to me, and
from what I know that there was some real, good evidence, taken by
camera by the Waki Commission and in solid evidence.
Now, of course, it has not been tested in a court of law and, as you
know, when you're investigating you don't test everything in a court of
law, but that is a process now for the ICC to continue the investigations
to see where they go to and eventually come up with - if it will do - a
finding that these crimes do fit under the mandate of the ICC and then
take action, if Kenya doesn't take action.
PAMBAZUKA NEWS: Many of us were rather surprised, I think,
by the Waki Commission 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.'
- * Maina Kiai is the former chairperson of the Kenya National
Commission for Human Rights.
* Firoze Manji is editor in chief of Pambazuka News.
Courtesy
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