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Kenya: Impunity & Elections, 2
AfricaFocus Bulletin
Jan 23, 2012 (120123)
(Reposted from sources cited below)
Editor's Note
"The promulgation of the constitution on 27 August 2010, was
a historic moment in our country. The constitution was a
culmination of the work of a lifetime for most people in
this gathering and many other Kenyans not at this meeting.
It may also stand out in history as the singular achievement
of Kenyans in this time. ... Yet, my concern is that there
appears not to have been a proper appreciation of the
essence of this constitution after its promulgation. ... I
have come to the inescapable conclusion that there are
Kenyans at all levels who are yet to make the mental shift
to the national and individual conduct that the constitution
heralds." - Chief Justice Willy Mutunga, December 2011
Opening a very complex year of legal and political developments
in Kenya, the International Criminal Court today issued
pre-trial indictments against four prominent Kenyan political
figures, including rival presidential candidates William Ruto and
Uhuru Kenyatta, for crimes during the post-electin violence
in late 2007 and 2008 (see http://www.icc-cpi.int /direct URL
http://tinyurl.com/7ysluo5) Charges were also issued against
Cabinet Secretary Francis Muthaura and radio executive Joshua
Arap Sang. Charges were not filed against two other suspects,
Postal Corporation chief Hussein Ali and suspended government
minister Henry Kosgey.
For additional news and reactions from the Kenyan press,
see http://allafrica.com/kenya.
This AfricaFocus Bulletin, available on the web at
http://www.africafocus.org/docs12/ken1201b.php, contains the
December speech by Chief Justice Willy Mutunga, and the
executive summary and key recommendations on U.S. policy
from a policy brief from the Friends Committee on National
Legislation on the context for Kenya's next elections.
Another AfricaFocus Bulletin, sent out by e-mail today and
available on the web at http://www.africafocus.org/docs12/ken1201a.php, contains an
overview from an International Crisis Group briefing on the
ICC and Kenya and the executive summary of the most recent
monitoring report from the Kenya National Dialogue and
Reconciliation (KNDR) Monitoring Project. The KNDR reports,
available at http://www.dialoguekenya.org/mreport.aspx,
provide systematic reviews of the process since the
2007-2008 election violence.
Regular updates on the ICC process and Kenya are available
at The International Criminal Court Kenya Monitor
(http://www.icckenya.org), a project of the Open Society
Justice Initiative. There is a concise summary of the
background to the ICC cases at http://www.icckenya.org/background/
For comprehensive legal updates from Kenya, see
http://www.kenyalaw.org
Two very valuable additional reports published last year,
with extensive background information but too detailed to be
excerpted in AfricaFocus, are the May 2011 special issue of
Pambazuka News on Justice for the People of Kenya
(http://www.pambazuka.org/en/issue/528), and the August 2011
publication by the Kenya Human Rights Commission (Lest We
Forget: The Faces of Impunity in Kenya). the KHRC report
provided a detailed review of a large number of governmental
reports on corruption and human rights violations, published
and unpublished, for the period 1992 to 2010. It notes that
there is a plethora of well-documented information. "What
has been lacking", it noted, "has been the political will to
follow up on the recommendations made in these reports - to
investigate and call to account those found responsible for
the violations." (Report can be downloaded from the KHRC
site http://www.khrc.or.ke / direct URL:
http://tinyurl.com/3juundd).
For previous AfricaFocus Bulletins on Kenya, visit
http://www.africafocus.org/country/kenya.php
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The imperatives of living by our constitution
Willy Mutunga
Pambazuka News
2011-12-08, Issue 562
http://pambazuka.org/en/category/features/78546
Justice Dr Willy Mutunga is chief justice and president of
the Supreme Court of Kenya. This speech was delivered at the
Kenya National Dialogue Conference in Nairobi on 5 December
2011.
Mr President, Mr Prime Minister, Mr Speaker, Mr Vice
President, the Chair and Members of the AU Panel of Eminent
Persons, retired presidents, friends, colleagues, fellow
citizens, it is an honour to have received invitation to
address you today particularly on an issue no less important
than that of living by our constitution. I want to thank Dr
Kofi Annan and his panel both for their courageous and
selfless service to this nation at a difficult time and also
for hosting this conference to enable us as a country to
reflect and look into the future.
There is an influential section of legal scholarship that
has made the argument that the crisis of governance in
contemporary Africa has been a deadly combination of bad
constitutions, often imposed and subsequently serially
amended to create imperial presidencies on the one hand, and
an absence of constitutionalism - the absence of a culture
to obey and respect rules, on the other. Coupled with bad
leadership and general institutional malaise, the transition
to democracy has been inchoate, dominated by reversals at
every stage. The result: a tortured population inhibited
from realising its full potential; an institutional culture
of timidity, even where no threats exist; and a society and
politics characterised by violence, fragility and
instability. The economic, political, and human costs have
been incalculable. Hence the reason we must not be blithe
and casual in our treatment of constitutional texts, once
freely enacted, after years of struggle and sacrifice.
There is no doubt that Kenya has a very progressive
constitution. It is long not just in size but also in
aspirations - an ambition of a nation codified and expressed
in very clear accents. And it was also long in coming,
itself a denotation or proof of the importance of this
social contract. But we will only live it if we understand
it; only if we embrace it; and only if we respect it. As
leaders and citizens, these are the three simple tests we
must meet in order to breath life into this constitution.
For those who may be tempted to bear the illusion that
Constitutions are mere pieces of paper, I want to invite you
to reflect on this fact: It is not by accident that when
state officers take office, whether in the executive,
legislature or judiciary, or even in other independent
constitutional offices, they are required to take an oath as
prescribed in the constitution. If it did escape your
attention before, now it must not: whereas those oaths bear
different textual forms, there is always a common refrain:
'to protect, defend and uphold the constitution and other
laws'. The meaning of this ubiquitous line is direct: all
state officers are creations of the constitution and the
law. Its implication is plain and simple: in the words of a
philosopher who was here long before us - be ye so high, the
law is above you. Its political and philosophical
foundations very clear: the constitution is a social
contract among citizens and once leaders are elected or
appointed into office they are sworn and bound to respect
this contract.
Citizens and leaders of this country must internalise and
understand why the assumption of high office is preceded by
the taking of an oath that constantly binds them to act in
accordance with and defend the provisions of the
constitution. Understanding the import of this basic act is
the beginning of living our constitution. Any leader who
doesn't is unfit to be in office. Any citizen who hasn't is
failing the test of good citizenship. Strict compliance with
the constitution and the law is so important that it forms
the first ground for impeachment of the president.
But this law that is above all of us, and which we must do
our duty to obey, is not an imposition. It is a product of
popular will and consent to be ruled by its edict.
The excitement and good spirit of this conference today, may
very easily obscure or conceal its tragic origins. These
series of dialogues are an expression of institutional
failure. It is because of a failed electoral system, a
failed judiciary, a failed police force and a general
failure of the state in 2007/2008 that provided the basis
for this and other consultations before it. Restoring
confidence and faith in our institutions is part of living
our constitution. It is the small things that we do as
institutions and citizens that begin the process of building
confidence.
The promulgation of the constitution on 27 August 2010, was
a historic moment in our country. The constitution was a
culmination of the work of a lifetime for most people in
this gathering and many other Kenyans not at this meeting.
It may also stand out in history as the singular achievement
of Kenyans in this time. Needless to say, many Kenyan
persons paid for the achievement of this constitutional
dispensation with their tears, blood, and sweat. Lives and
personal liberty were lost, friendships were strained and
families were shattered. It is all too easy to forget these
heavy prices paid by our compatriots. In short, we need to
remember that the consideration for this social contract
that is Kenya's constitution was the highest possible price
the citizens could have paid for it.
For that reason, the taking of effect of this constitution
is an achievement of a once far-off dream. Yet, my concern
is that there appears not to have been a proper appreciation
of the essence of this constitution after its promulgation.
From the statements, actions, inactions and perfidy that is
evident among some citizens, some authorities and persons
are signals of another reversal in our democratic transition
that has been the bane of most African countries is becoming
evident. Some of these actions are by default; others are by
design but the category does not matter for their cumulative
effect is the same. I have come to the inescapable
conclusion that there are Kenyans at all levels who are yet
to make the mental shift to the national and individual
conduct that the constitution heralds.
It is depressing that one year after the promulgation of the
constitution, the country falls in the corruption index, we
still hear of extrajudicial killings, institutions and
leaders play fast and loose with constitutional deadlines
and so on. Constitutional provisions are there to be obeyed
and any public or state official who finds certain clauses
administratively inconvenient must be reminded that vacation
of office is a honourable option if one no longer feels
capable of honouring his or her oath of office to protect,
defend and uphold the constitution.
There is discernible stonewalling by certain sections of
this country to the establishment of the institutions that
are required to be formed, deliberate disregard to the
rights of the citizens and utter refusal to incorporate its
principles in the instruments of governance.
My response is this: living by the constitution of Kenya is
not a choice for any individual, institution, office or
authority. All Kenyans must comply and live within the
edicts of the constitution.
Compliance with the constitution is not about picking those
that afford us our desired rights and ignoring our
responsibilities therein. It is not an all or nothing
situation. Kenya must comply with the whole constitution all
the time and in every office. From the tiniest hut to the
State House, this constitution must apply, to the lowliest
hawker no less than it will apply to the corporate titan, to
the governor no less than the governed. That is what the
rule of law means. It is what equality before the law
requires.
I do not underestimate the difficulty of living by this
constitution. Yet the rule of law is not for the fainthearted.
There is not time or opportunity to implement the
constitution in half-measures.
We cannot live only with our likes and ignore your dislikes.
This is particularly true in light of the fact that it may
be possible that there are certain clauses that may be more
appealing to us than others. For those of us within the arms
of government, we must remember that we are under obligation
to abide by the whole constitution not individual clauses.
We must foster the realisation in all that this constitution
is for all Kenyans. That is why its destiny has been placed
upon all of us. It has placed responsibilities to ensure its
implementation on all. No one is immune from the duty to
uphold the constitution. In short, we must be each other's
keeper in ensuring that the constitution is lived to its
fullest.
Therefore, living by this constitution means that we must do
what it requires to be done, when it is required to be done
whatever the cost in finance, in effort and in personal
convenience. Secondly, we must reconstitute, reform and
dismantle those institutions and offices it compels us to.
Public participation is one of the fundamental principles in
the new constitution. It runs the entire gamut of the
document. Citizen vigilance is important in protecting and
promoting our constitution.
But the public should not merely demand of their leaders to
respect the constitution, they must also live by its edicts.
It worries me when I see daily individual transgression
where citizens routinely violate the rights of other
citizens. Living the constitution is not a preserve of the
leadership; it is an obligation that reposes in the citizen
as well. In your daily conduct, in your relationship with
other Kenyans, in exercising your right to choose leaders
you have a responsibility in giving life to the
constitution.
If you choose to elect a leader who fails the test of
Chapter Six [on leadership and integrity], you will be as
guilty of undermining the constitution as a leader who
thinks that ignoring court orders is an act of nobility.
Choosing to support extrajudicial killings, as opposed to
submitting to due process, amounts to killing the
constitution. In choosing the path of electoral violence,
instead of a free, fair, and peaceful electoral process is
to subvert the constitution. In choosing to play ethnic
politics, instead of patriotic politics contributes to the
killing of the constitution.
Fellow citizens, we have made a contract with ourselves; let
us perform it. The constitution is the performance contract
we have signed among us as citizens as well as between
citizens and the governed. Every single day, we must ask
whether we are hitting our constitutional targets in this
performance contracting.
The business community must learn that it is in its long
term interest to have a constitution that works, and a
country that respects the rule of law. The effort it put in
the referendum after years of mistaken belief that the
constitution was not its business will be wasted if it does
not pay attention to the implementation of the constitution.
I also want to recognise the immense contribution of the
international community to the struggle for the new
constitution. They provided significant resources and
support at critical stages and still have a responsibility
to continue supporting this country in building its
democracy.
The judiciary will play its role as mandated by the
constitution. As I said in my statement during the inaugural
sitting of the Supreme Court, we shall not blink or flinch
in interpreting the constitution and also remaining true to
the oath of office we took. The constitution has radically
changed the way the judiciary is organised and operates.
Every day we are doing our part to live by the constitution.
The judiciary will play its role as mandated by the
constitution.
That is why we have embarked on an ambitious transformation
framework for a functional judiciary which is a major
determinant for good politics and good business. For the
security of tenure you have given us, the judiciary must and
will show its independence.
We shall not hesitate to act as long as we are doing so
within the confines of the law. It is a commitment I want to
give to the country: that when it comes to upholding and
protecting the constitution, the judiciary will not be for
turning.
To the two principals, I have this to say: You have made
your own sacrifices to have this constitution. I remember
your struggles on the trenches for a better Kenya and a new
constitution. I particularly recall your participation in
the National Convention Executive Council and the mass
action of 1997.
It is a good thing that you have ascended to high office.
However, I hope that you appreciate that the biggest legacy
that you will leave for this country is not so much the fact
that you ascended to power but that you facilitated the
delivery of a new constitution and defended it when it was
under attack.
To fail to protect this constitution will be a betrayal of
your own struggles; a betrayal of your own oaths of office
and a betrayal of the struggles and aspirations of the many
Kenyans.
Fellow Kenyans, we must all go back and read the
constitution.
Each institution must go back and read the constitution and
systematically understand what it means for their work.
Living by our constitution demands that we learn and know
its contents not through some remote imbibing or 'I hear the
constitution says, type of discussions - it means taking
individual responsibility to read and obey it.
Kenya's National Elections: Violence Renewed or Crisis
Prevented?
By Cassidy Regan, Scoville Peace Fellow
For more information, contact Bridget Moix at
[email protected]
Policy Brief 2011
Friends Committee on National Legislation
http://www.fcnl.org
[Executive Summary and key recommendations only. For full
text of the policy brief, see http://fcnl.org/issues/ppdc/Kenya_Policy_Brief_2011/]
October 2011
Executive Summary
In 2012, Kenya plans to hold national elections. These
general polls will be the first since December of 2007, when
the country's disputed presidential race provoked a deadly
crisis that threatened to erupt into civil war. Ultimately,
more than 1,000 people were killed and an estimated 500,000
displaced.
Many Kenyans have since worked tirelessly toward breaking
their country's cycle of electoral violence, and the
upcoming polls will mark a critical moment in the attempt to
prevent crisis renewed. As the elections approach, the U.S.
government should proactively take part in the effort to
help prevent deadly conflict and support long-term peace -
not only because of Kenya's longstanding economic and
political partnership with the United States, but because of
the crucial role Kenya plays in its wider region.
While much has been achieved in Kenya since 2007, many of
the grievances most responsible for past electoral violence
continue to plague its citizens. Tensions around issues
including inequality, ethnic division, lack of land reform,
corruption and high rates of youth unemployment remain.
Though Kenyans peacefully approved a new constitution in
2010 that contains many much-needed reforms, political
resistance to changes in the status quo continues. The
government has also been slow to hold perpetrators of the
2007 post-election violence accountable, causing Kenyans to
question the government's commitment to ending impunity and
leading to an external investigation of the crimes by the
International Criminal Court.
At the same time, Kenya's relatively robust institutions and
infrastructure provide much of the foundation necessary for
long-term stability. Moreover, its past demonstrates that
action to avert violence can be effective. Even in the midst
of the growing conflict in late 2007, Kenyan civil society,
regional African groups and the broader international
community were able to respond with humanitarian assistance,
citizen advocacy and rapid diplomacy. The efforts led to a
peace agreement that both put an end to the immediate
violence and called for commitment to long-term reform,
demonstrating how the tools of tools of diplomacy, civil
society mobilization and international cooperation can be
used to halt atrocities and restore peace.
Once again, the United States and greater international
community have a significant stake in helping to ensure a
peaceful outcome to the Kenyan election. Kenya has longserved
as the anchor of U.S. policy in the region, and its
strong economy, vibrant civil society and meaningful
contributions to regional organizations and peacekeeping
efforts make the country critical to East African and global
stability.
Though Kenyans themselves will take the most important steps
toward lasting peace, the Obama administration and Congress
can and should join them in supporting the prevention of
deadly conflict. By investing in grassroots peacebuilding
and civic education, coordinating preventive diplomatic
efforts, encouraging greater accountability from the Kenyan
government and preparing to respond rapidly to any violence
that might occur, the United States can make concrete
contributions toward preventing another crisis - well before
the election begins.
Key Recommendations for the U.S. Government
- Develop and implement an interagency prevention strategy
focused on Kenya well in advance of the 2012 elections.
Utilize the new Atrocities Prevention Board at the National
Security Council to create a coherent, prevention-focused
strategy that emphasizes early, sustained diplomatic
engagement and support for local preventive efforts. Invest
in the U.S. civilian capacity necessary for effective
prevention and response to potential violence (including
tools like the Complex Crises Fund and Civilian Response
Corps).
- Coordinate preventive diplomatic efforts with key Kenyan
and international partners, including the African Union and
United Nations. Support others' leadership and contribute
U.S. assets where most useful.
- Direct U.S. diplomatic engagement toward pressing Kenya's
leaders to implement the constitution and to advance
government accountability at both national and local levels.
Support the International Criminal Court investigations, as
well as Kenyan judicial and criminal justice reform. Urge
greater demonstration of commitment to volatile issues,
including land reform, corruption and the resettlement of
those internally displaced.
- Increase funding for U.S. assistance focused on conflict
prevention and management, as well as funding for aid that
addresses root causes of conflict and supports stability in
the long-term. Provide more resources for initiatives
related to civic education, community peacebuilding, civil
society, fair elections and youth economic empowerment,
particularly in volatile areas.
- Ensure that U.S. assistance does not inadvertently enable
further human rights violations. Undertake a full review of
U.S. security assistance to Kenya that is informed by a
conflict assessment and a thorough examination of the
current state of Kenya's security forces. Proactively
monitor units receiving U.S. assistance and halt all lethal
aid.
- Provide funding to support the disarmament of local
militias and increase efforts to help reduce arms
trafficking in the greater region. Continue to facilitate
the destruction of small arms and light weapons.
AfricaFocus Bulletin is an independent electronic
publication providing reposted commentary and analysis on
African issues, with a particular focus on U.S. and
international policies. AfricaFocus Bulletin is edited by
William Minter.
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