The following article originally appeared in The Star.
You should never take a knife to a gunfight. But that is exactly what will happen if we buy the argument that the freshly minted governance institutions established under the new Kenyan constitution can handle those bearing the greatest responsibility for the 2007 post-election violence.
The reason is very simple: unlike instant coffee that is ready as soon as it is stirred in hot water, governance reforms take time to settle, catch on, and spread. This is especially the case when the attempt is made to transform formerly recalcitrant institutions into responsive, open, and accountable structures. The reform process is a time-consuming, arduous journey: not a blink-of-an-eye curative episode or event.
The argument, therefore, is incredibly hollow that the appointment of a new chief justice, attorney general, and director of public prosecutions will suddenly transform institutions that have a zero track record in the effective prosecution of impunity into guardian bastions and purveyors of justice. And the fact that the African Union has, to its eternal disrepute, bought it does not in any way redeem it from its cynical vacuity. There are several reasons why.
First, there is the entrenched culture of impunity. Granted, Kenya is not a failed state. However, Kenya has singularly and spectacularly failed in ensuring any meaningful prosecution and holding to account of its high-and-mighty. The issue is not that this is a failed state; it is that the state has failed in bringing to book those who enjoy a certain favored elite status. To argue, then, that the prosecution of Francis Muthaura, Henry Kosgey, Hussein Ali, Joshua arap Sang, Uhuru Kenyatta, and William Ruto signals that Kenya is a failed state completely misses the point. The truth is that there has been no track record since independence—or even before—where those wielding real power in Kenya have been brought to account for violations of the law. And each of these six gentlemen—except perhaps for Joshua Sang—carries substantial political or bureaucratic gravitas to ordinarily render him untouchable by the judicial or criminal justice system.
This, by the way, is not to argue that the six whom the International Criminal Court prosecutor wishes summons issued against are guilty. Rather, it is to assert that it is only by allowing the mechanics of due process to apply that a proper determination of guilt or innocence can be ascertained. Yet due process cannot be expected to suddenly and spontaneously appear in Kenya’s political lexicon since there is a new chief justice, attorney-general, and director of public prosecution.
Second, an entrenched culture of impunity only survives by creating its own network of enforcers and supporters. This network provides an army which will be at hand to defend the system at all costs when it is under threat and offer as much resistance when change is afoot The enforcers are those in the system who provide the muscle and energy to keep alive this system and also allow it to thrive. They have cushy—and not so cushy—jobs but all derive direct and side benefits from the system. The supporters are those who provide the political wind to keep the system going: and often enjoy patronage goodies from those in charge.
A patronage network is all the more formidable where entrenched cultures of impunity are desperately striving to maintain the status quo. Kenya has numerous examples to demonstrate but there is a prototype of how impunity resists and fights back. It all starts with an accusation of wrongdoing. Even before any evidence is adduced, there are loud protestations and counter-accusations that the accusation is a result of the political targeting of the accused. Suddenly the ethnic community of the accused is roped in and primed through a deluge of messaging that speaks of the targeting of that community. A siege mentality is actively politically cultivated among those from that ethnic community which inevitably leads to a quiet and timid ending of the issue. There is invariably no recourse to due process.
How will a new chief justice, attorney general, and director of public prosecutions singly or collectively deal with this? Especially considering the pervasive non-reformist environment? Re-reading Michaela Wrong's book It’s Our Turn to Eat: The Story of a Kenyan Whistle-Blower—the story of John Githongo’s experience while serving as the anticorruption czar in the office of the president when the National Rainbow Coalition assumed power and promised reforms in December 2002—one can plainly see how futile and fruitless such an exercise is.
This is what informs the third point—Kenya’s big man politics has not yet changed. We are currently seeing an altercation between the president and prime minister that indicates that the syndrome of unilateralism that had colonized the old order is alive and well; despite the new constitution. The continuation of old bad political habits simply reinforces and empowers the culture of impunity: those with the power do not allow for greater sharing and participation and continuously surround themselves with only those they can comfortably control. And so the institutions that should be reformed are instead only brought under the tighter control of the merchants of impunity.
This is why a clean break is needed. Proper reforms in this instance will return to infancy the police force, prosecutorial service, and judiciary. That these newly reborn institutions should be saddled with the burden of an entrenched culture of impunity will surely crush them before they are even able to germinate and sprout. Of course, that is the very idea behind the scheme to seek a deferral from the International Criminal Court. But who—except the Kenyan elite—in their right mind offers a newborn baby a mountain of yesterday’s ugali to choke on in the name of weaning?
