Kenya: forwards and backwards

23. Juni 2013

Hope is a faithless friend of Kenyans‘. While various attempts of democratic reforms had been made in the last years, disappointment was a constant companion. After Mwai Kibaki’s victory and John Githongo’s appointment as anti-corruption czar in 2002/2003 came the Kibaki regime’s scandals and Githongo’s escape in 2005. After the shocking post-election violence in 2007/2008, it was the constitutional reform process which raised hopes for the overcoming of the old system of tribalism, corruption and ignorance of the people’s will. But the soaring dreams might shatter again. Even though most Kenyans (and observers) feel relief that this time the elections took place peacefully and the losers stayed prudent, Uhuru Kenyatta’s triumph by very narrow margin is not the sign of maturity and reconciliation as which he tries to sell it.  It is the counterstrike of the old forces which instrumentalize ethnic tensions for their power game. The political landscape of one of Africa’s high potential states stays as deeply divided as ever before.

President Uhuro Kenyatta and Vice President William Ruto, both brought to trial in The Hague, being charged with severe crimes against humanity; Kenya ruled for months by defendants in the dock: it is a bizarre scenario, but a realistic one. Kenya’s government is putting pressure on the International Criminal Court, even trying to motivate the whole African Union to join its crusade against The Hague, but  chief prosecutor Fatou Bensouda from the Gambia and the judges insist on the trials. The Ruto case is to begin in September, Kenyatta’s trial which initially was planned to begin in July has now been postponed to November. Fatou Bensouda announced to appeal the ICC’s ruling excusing Mr Ruto from continued appearance during the duration of his trial to allow him to attend to his duties as Deputy President of Kenya.

Kenyatta and Ruto have achieved a  partial success against the ICC but they are still facing charges of crimes against humanity – against their own people. They may come out of this, they also may be acquitted in a fair trial, but nevertheless:  More than 1.500 people died in the post-election violence of 2007/08, but two of the alleged main responsible people for this bloodshed are now No. 1 and 2 of the Kenyan state.

Only two years ago, Kenyans watched the pre-trials in The Hague live on TV. There was a feeling that justice – which Kenya’s own jurisdiction was not able to provide – would come. Uhuru Kenyatta was the most prominent defendant. He is the the son of Kenya’s founding president Jomo Kenyatta, has been presidential candidate in 2002 and in 2011, he was the acting vice prime minister and minister for finance. Only two years ago, this career seemed to be over. The incarnation of Kenya’s political elite and one of  Kenya’s richest men was considered „burnt“. Wishful thinking, as it turned out to be. Now, he is the current president. It is a truly bizarre comeback.

On the other hand: Kenyans have chosen this bizarre situation. 50,07% voted for Kenyatta’s and Ruto’s so called Jubilee Coalition. Doubts about his result were profound, yet they are obsolete, as the Supreme Court confirmed it and the losing candidate Raila Odinga accepted.

How could this happen?

Uhuru Kenyatta, a Kikuyu, and William Ruto, a Kalenjin, had been archenemies for a very long time. In 2007/2008 they fought on opposite sides. But now, they form a coalition and a government. They sell this coalition as a symbol of national unity, as a victory against tribal feuds. But in reality, it is quite the opposite: The «Uhuruto’s» Jubilee coalition was nothing but a tactical merger against Raila Odinga, a Luo. It was a tribal ticket to power.

Kenya’s post-independence history is full of surprising coalitions and of their breaches. The front lines do not go along ideological or genuinely political disagreements, they do not reflect classes, milieus or differences between urban and rural areas. Politics in Kenya is a question of tribes. Parties are tribal unions and coalitions are a result of ethnic arithmetic.

Besides the ICC cases, Uhuru Kenyatta and William Ruto do not have a lot in common, except for their fostering and exploitation of ethnic tensions. Even if they are not guilty of the ICC’s charges, they do represent the old political establishment (albeit this is true for Raila Odinga, too). This political establishment is a snake pit whose only trump card has always been the ethnic one.

There has been relief about the peaceful elections, even Barack Obama praised them during his current Africa visit. But the only real winner was once more the Ancien Regime. (Have a look at this interesting piece by Oriem Ochiel: Kenya Will Never Was)

Many Kenyans had hoped to overcome this old order by the new constitution which became Kenya’s supreme law in 2010. The shocking experience of 2007/2008 served as a catalyst and forced by external pressure into a multiparty, ergo multi-ethnic government, Kenyans with the help of some new, young politicians and a vibrant civil society succeeded in the formulation of a constitution that truly has the potential to  become a pacemaker for a democratic future. A liberal Bill of Rights, the protection of minorities, rule of law, checks and balances, devolution, promotion of women: This is one of the most modern and democratic constitutions in the world. And it is based on political principles, not on ethnic ones. This constitution can fight the endemic corruption and keep the tribalism within bounds. If this constitution is fully and truly implemented, it can transform Kenya into another country. If only…

The implementation of the constitution is a long and complicated process. From electoral laws to an efficient and federal fiscal system: countless laws have to be created or changed, institutions have to be reformed or newly established. Harvard graduate Abdikadir Hussein Mohamed is one of those young politicians, relatively free of tribal thinking, who took the lead. The smart MP was able to broker a historic compromise between political camps which made it possible for the draft of the constitution to go into a referendum by the people who then overwhelmingly voted for it. After the constitution had become law, Abdikadir headed the crucial parliamentary committee for its implementation. „If we do it right, this constitution can change our political culture for the better. But we need time.“, Abdikadir said in 2011. For his efforts he received the German Africa Award 2011, as a representative of a hopeful society fighting for its democratization. During the constitution euphoria in Kenya, the political bearer of hope had even been talked about as a future president.Two years later, a politician who is by any account contrary to Abdikadir is the new president: Uhuru Kenyatta.

Abdikadir comes from the remote north east of Kenya, as a Somali he does not belong to one of the big ethnic blocks in this multiethnic state. Therefore, he was no danger to the tribally thinking big men, a fact which enabled him to broker between the camps. But his modernity and his freedom which were his advantages during the constitutional process turned out to become the biggest impediment for his further career before the implementation of the constitution was completed.

Because of the Somalia conflict which spread out to Abdikadir’s home region next to the border to Somalia, the ethnic composition of his constituency changed and he realized that he wouldn’t have a chance to win it again. Because it’s still not the program but the ethnic origin that counts. Abdikadir decided not to run for Parliament again. After the elections he wanted to run for Speaker of the National Assembly, a post which is by definition of the constitution not bound to a seat in Parliament (the speaker becomes MP ex officio), but the Uhuruto government had its own candidate. Abdikadir Mohammed was appointed as head of a so called devolution task force but after all, the pioneer of a new system has been beaten by the old system.

Willy Mutunga is another bearer of hope. In 2011, the excellent lawyer and long time human rights activist was elected Chief Justice. Now he is the most important person to defend the achievements of the constitution against what he calls the „old forces“. „It would be very, very, very naive to think that, because there’s a new constitution, the old forces are going to sit back. They are not defeated“, he told me in 2011. And he was to be right. Uhuruto represent many things, but they do not stand for  the reform of a political system which they benefit from. The proof? 3 years after the new constitution, the more than 200 MPs of the new Parliament who already belong to the best paid one in the world do not debate on the implementation of the constitution but on the increase of their salaries.

The Kenyan tragicomic political history shows that the existence of a modern constitution alone does not guarantee a modern state. A constitution is not enough to radically change the political culture. And the often lauded nucleus of democratic reforms in Africa, the rising new middle class, as well educated, ambitious and democratic as it may be, is not yet strong enough in Kenya to defeat the old forces. With the constitution, the new generation may have achieved a stage victory but in the fight for a modern, democratic and inclusive Kenya it suffered a prompt reverse. The ethnic trenches which were digged by the ancien régime for its own purposes are still to deep. They cannot be skipped all at once.

All in vain?

No! Because even the old forces won’t be able to turn back the wheel completely. There are important sections of the constitution which had been implemented successfully before the elections. This applies especially to the independent judiciary. Kenya’s democratic future will depend on it and on the legal checks and balances it sets to the government and the legislative.

Moreover, the daily routine in Kenya will go on under the Uhuruto government. The economy of the high potential state most probably will continue to grow on a sound basis – more despite than because of the government. And the serenity that most Kenyans show  in view of the fights within its political elite (as said before, the violence in 2007/08 was not a „naturally grown“ outbreak but a poked one) demonstrate the growing maturity of a society which in many terms is streets ahead of its politicians.

Maybe, hopefully, this will finally find expression in future elections – and won’t be distorted. But meanwhile, as long as ethnic criteria (and money) remain the decisive ones for participation and political success, Kenya’s way into the future will be  a zigzag path.

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