Elections are supposed to flip power relations. During an electoral process, a country’s political elites remember their fundamental jobs and are – more than ever – the servants of the people. While campaigns are ongoing, the elites need voters’ support, their attention…and most importantly, their votes. During this time, it is voters who can sit back and evaluate their leaders, deciding whether or not their actions are deserving of another term in office. Over the years and around the world, however, this power structure has often been reversed. In the quest to win and/or retain power, political elites have managed to shape the electoral process to their advantage, creating loopholes and amending laws that dilute public power.
PUBLIC CONFIDENCE IN THE KENYAN ELECTORAL PROCESS
Kenya is no exception to this rule, and voters have taken note. Over the past fifteen years, the Kenyan public’s confidence in elections has dropped precipitously. In fact, between 2005 and 2015, the proportion of Kenyans who strongly agreed that elections were the best way to choose leaders decreased by more than ten percentage points. Unsurprisingly, faith in the credibility of elections has also suffered. In fact, there has never been a time over the last three election cycles (including the current one) when a majority of Kenyans has felt that the last election was completely free and fair.
With the next general election in Kenya scheduled to take place in less than three months, it is critical to think about how to urgently address this marked dearth in voter confidence. An important first step is the assessment of potential vulnerabilities. Reflection about what went wrong last time and what is at risk of going wrong again is useful, not only for policymakers but also for voters, who can and should take time to critically assess whether or not their electoral processes prioritize their roles and voices.
There are, of course, many issues to consider. These include poorly enforced electoral laws, delayed timelines, the lack of intra-party democracy, incidents of pre-election violence, and shrinking space for vigorous public debate on the most contentious and timely election-related issues. At this stage in the electoral cycle, however, it is most urgent to focus attention on the factors that most significantly impacted the credibility of the last election and which continue to haunt this election cycle. Together, unresolved questions regarding leadership and integrity, the Independent Electoral and Boundaries Commission (IEBC), voter registration and the process of counting and tallying threaten the credibility of the upcoming elections.
LEADERSHIP AND INTEGRITY
To begin, the 2013 election was the first to take place under the guiding principles of the country’s new, internationally lauded constitution, itself the result of a decades-long struggle. The constitution included many new provisions that would have a bearing on elections, but one of the most fundamental, overarching issues concerned the qualifications for and conduct expected of state officers. Indeed, Chapter Six of the constitution, devoted to leadership and integrity, is groundbreaking in the context of Kenyan political history, confronting, as it does, some of the most longstanding and deeply embedded obstacles to good governance.
Over the past fifteen years, the Kenyan public’s confidence in elections has dropped precipitously. In fact, between 2005 and 2015, the proportion of Kenyans who strongly agreed that elections were the best way to choose leaders decreased by more than ten percentage points.
Chapter Six fundamentally shifted the relationship between state officers and the people, requiring the former to selflessly serve the latter. Despite the dramatic weakness of the Leadership and Integrity Act that was passed to operationalize Chapter Six provisions, the lead-up to election day in 2013 did include bold efforts to test the letter and spirit of the law. The most notable of these was a lawsuit filed by the International Center for Policy and Conflict and five others, which asked a deeply controversial question: were Uhuru Kenyatta and William Ruto in violation of Chapter Six standards, and therefore ineligible to run for office, based on the International Criminal Court’s indictments against them for their alleged commission of crimes against humanity in the aftermath of the 2007 election?
The High Court’s judgment was disappointing, leaving the public doubting that state institutions were in fact committed to the standards of the constitution. Although the Court claimed that it lacked jurisdiction on matters related to the presidential election, its judgment did define the standard of integrity required by a person seeking public office. According to the Court, such an office-seeker should be beyond reproach and should not have unresolved questions about his/her character and commitment to the national values in the constitution. On the other hand, however, it also ruled that there is a distinction between appointive and elective positions. For the latter, the Court was of the opinion that it is up to the voters to decide who to choose, based on candidates’ “honesty, rectitude, uprightness and scrupulousness.” After the judgment was handed down, a lawyer for the petitioners remarked, “Today marks the official death of one of the chapters in the constitution. That is Chapter Six.”
Uhuru and Ruto were thus free to run for office, and Kenyans were told that questions about their character related to the indictments against them were “a personal issue.”
More importantly, since the substantive issues of the case were never appealed to the Supreme Court, Kenyans were left with an electoral context that was marked by the severe limitations of the candidate pool. After all, the Court had not considered that by attempting to leave it up to voters to decide how strictly candidates should be judged with regard to factors of integrity, it could well be that voters ended up with little substantive choice. With no enforcement of Chapter Six provisions for elective office-seekers, voters could well be faced with a slate of candidates, all of whose characters were tainted by integrity-related problems. The ruling also made it clear that there was little political will to apply the leadership and integrity laws across the board, thus cementing the status quo of elite impunity.
Unsurprisingly, unresolved leadership and integrity issues continue to plague this electoral cycle. In 2016, PricewaterhouseCoopers conducted a survey on the prevalence of economic crimes in the world and found that Kenya topped the list of 78 countries in the study. A shocking one percent of the country’s national budget had been properly accounted for in the previous year. Theft and misappropriation was the most common type of crime. As of 2016, there were 17 MPs who had been charged in court for committing serious criminal offenses, including fraud, forgery, hate speech, rape, corruption and incitement to violence. At least 90 others were under suspicion for graft.
The public has noticed. When asked how much they trusted the ruling party, the opposition and MPs, Kenyans reported significantly low levels of confidence.
Table 1: Trust in Parliament, the Ruling Party and Opposition Parties
|Not at All||Just a Little||Somewhat||A Lot||Don’t Know|
Source: Afrobarometer R6 2014/2015
Such findings are telling, and they are especially relevant in the context of upcoming elections. Given the lack of political will to seriously implement and enforce constitutional standards of integrity, the public has little reason to put its trust in the state, or in the electoral process. Without proper enforcement of Chapter Six provisions, voters’ choices are always restricted. Over time, such an environment can lead to increasingly low levels of public confidence. In the long run, this endangers democratic resilience.
In an attempt to address the gaps in Chapter Six enforcement, the IEBC recently convened what is known as the Chapter Six Working Group on Election Preparedness. The group, which includes several state institutions, plans to vet parties’ lists of nominated candidates to ensure that they adhere to the Attorney General’s recently published guidelines. It is unclear, however, what authority this group has to carry out its stated purpose, especially given that the Court’s ruling in the case against Uhuru and Ruto made it clear that the presumption of innocence holds until cases are concluded.
THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION
Closely linked to public confidence in elected leaders is trust in the body charged with administering elections, the Independent Electoral and Boundaries Commission (IEBC). In fact, one study found that public confidence in a country’s electoral management body (EMB) is tied to public faith in the credibility of the election. Specifically, in a paper on Nigerian elections, Nicholas Kerr found,
The strongest correlate of citizen’s perceptions of election quality is the performance of [Nigeria’s Independent National Electoral Commission (INEC)]…when citizens are highly satisfied with the performance of INEC, they are thirty-eight percent more likely to consider the 2007 elections free and fair… But even more importantly, it highlights that ordinary Nigerians associate their evaluations of EMB performance more with their assessments of election quality, despite how strong their partisan attachments may be.
In Kenya, public confidence in the IEBC has fluctuated dramatically over the last five years. At the end of 2012, surveys showed that 70 percent of Kenyans had faith that the IEBC was carrying out its work impartially and 72 percent believed in the Commission’s independence. One month before election day in 2013, 91 percent of respondents said that they had faith in the IEBC’s competence to manage the election and 89 percent believed in the Commission’s impartiality. 91 percent of respondents also said they believed the IEBC was independent enough to conduct the election in a free and fair manner.
These pre-2013 election levels of confidence were a high point for the Commission, which suffered from plummeting levels of public faith after the 2013 election. The drop in confidence was due to a combination of factors, the most notable of which included procurement delays and irregularities in the lead-up to election day, problems with technology during voter registration and on election day, the failure of the electronic results verification system and the subsequent delay in announcing the result. The Supreme Court case challenging the integrity of the entire process, filed by the Africa Centre for Open Governance (AfriCOG) and the Kenyan Asian Forum, also publicly highlighted the multiple technical and administrative problems throughout the process. Indeed, post-election polls revealed a precipitous drop in public confidence in the Commission. In the immediate aftermath of the election, 44 percent of Kenyans reported that they were confident in the IEBC. In Nyanza, only 8 percent of respondents felt this way. By 2015, the figures had not changed dramatically, with 43 percent of Kenyans reporting confidence in the IEBC. Among opposition supporters, 71 percent reported that they did not have confidence in the Commission.
After the judgment was handed down, a lawyer for the petitioners remarked, “Today marks the official death of one of the chapters in the constitution. That is Chapter Six.”
The IEBC has experienced significant changes since the 2013 election. Senior members of the Commission were implicated in a corruption scandal, and a series of opposition protests against the IEBC eventually resulted in the dismissal of all the commissioners. New commissioners assumed office in late December 2016.
The changes seem to have made some difference. A recent poll shows that 72 percent of respondents feel that the IEBC is prepared to conduct a free and fair election. On the other hand, Kenyans are also extremely cautious in their outlooks. In fact, in four of Kenya’s former provinces, more than 20 percent of the population is not sure that the Commission will be able to administer a credible election.
While the high level of public confidence is encouraging, the new IEBC stands at an important crossroads. In order to maintain public faith, the Commission will have to work to show Kenyans that it is serious about avoiding the mistakes that marred the last process and that it is willing to fight to maintain its independence. The signs so far are mixed. The Commission’s decision to cancel the tender process for election technology and engage in a direct award of the contract to the same firm that was partially responsible for the previous set of botched technology raises questions about how well the IEBC has learned from past mistakes. This is compounded by a more recent announcement that the IEBC may proceed with a direct award to a ballot-printing firm. Moreover, recent analysis of the last mass voter registration exercise has revealed serious administrative and technical irregularities. On the other hand, the Commission’s stated commitment to enforcing gender parity in party lists and to enforcing leadership and integrity standards in the vetting of candidates is admirable.
The IEBC is making certain attempts to keep the public updated. It does hold press conferences, and it regularly updates its website with relevant press releases. This information is useful, but the Commission must go further with regard to transparency if it wishes to maintain public confidence. There are several outstanding questions at this stage of the electoral process, the most urgent of which are related to procurement, voter registration, the ongoing audit of the voters’ register, the use of technology, and counting of results. If the IEBC begins to address some of these concerns, it could go a long way in preserving public faith, especially as it is likely that problems will continue to arise as election day gets closer. No election is perfect, but the IEBC’s honest evaluations of its strengths and weaknesses related to current concerns are critical.
In 2013, much of the public’s dissatisfaction with the IEBC was rooted in problems with the voters’ register. The register was shrouded in a certain amount of mystery, with the total number of registered voters in Kenya shifting throughout the electoral cycle. The first sign of the problems to come appeared in February 2013, when it became clear that the final, gazetted register differed significantly from the provisional register released in December 2012. Overall, the register had grown by 12,500 voters.
Without proper enforcement of Chapter Six provisions, voters’ choices are always restricted. Over time, such an environment can lead to increasingly low levels of public confidence. In the long run, this endangers democratic resilience.
While a decrease in the number of registered voters was expected (because the verification and cleaning process would expunge dead voters, multiple registrations, etc), it was unclear how the register grew in size between December 2012 and February 2013. Moreover, there were significant regional changes in the numbers between December and February. These are detailed in the table below.
Table 2: Internal Changes to the Register of Voters
|Region||Changes between December 2012 and February 2013|
Source: AfriCOG/KPTJ. 2013. “Voter Registration for the 2013 General Elections in Kenya.”
These changes became more worrying when the IEBC could not commit to one total number of registered voters. In fact, there were at least six different totals announced during various parts of the electoral cycle.
Table 3: Shifting Totals of Registered Voters in Kenya
|Provisional Register (December 2012)||14,340,036|
|Principle Register (February 2013)||14,352,545|
|Special Register (March 2, 2013)||36,236|
|Election Results Total (March 9, 2013)||14,352,533|
|Green Book Total||14,388,793|
|Post-Election Register (July 2013)||14,388,781|
Source: AfriCOG/KPTJ. 2013. “Voter Registration for the 2013 General Elections in Kenya.”
This shifting total, in addition to the IEBC’s assertion that what was known as the “green book” (A green book is an unregulated, manually-recorded list of registered voters. It had been severely criticized by experts.) was being used for purposes of registration, severely compromised public confidence in the integrity of the register. Indeed, the lack of a single, verifiable register breeds suspicion about political influence at worst and basic incompetence of the electoral management body at best.
Doubts around the register have not faded. In fact, the IEBC’s two mass voter registration exercises in the current cycle were rife with problems. These included widespread problems obtaining IDs, problems with dysfunctional and nonfunctional biometric voter registration (BVR) kits, unexplained use of the green book, disorganized registration centres and poorly trained IEBC staff, registration bribery, coercive registration practices and massive amounts of transfers. At the end of these processes, the IEBC announced that the total number of registered voters had grown to 19,749,310, representing a 37 percent increase since 2013.
In the immediate aftermath of the election, 44 percent of Kenyans reported that they were confident in the IEBC. In Nyanza, only 8 percent of respondents felt this way. By 2015, the figures had not changed dramatically, with 43 percent of Kenyans reporting confidence in the IEBC. Among opposition supporters, 71 percent reported that they did not have confidence in the Commission.
The elections law also allows the IEBC to engage a professional firm to conduct an audit of the voters’ register. The stated purposes of such an audit are to verify the accuracy of the register, recommend mechanisms to enhance its accuracy and to update it. While an audit may go a long way in promoting public confidence in the register, the process has thus far been controversial. In addition to allegations that there were irregularities related to the decision to hire KPMG, there is mistrust because of the firm’s lack of expertise in conducting such audits. Indeed, KPMG’s proposed methodology does not reflect internationally accepted best practice for the audits of voters’ registers, and there has thus far been a lack of transparency with regard to KPMG’s progress and therefore its eventual findings.
In addition to these technical problems with registration, the legitimacy of the entire process was cast in doubt when it emerged that the IEBC had cancelled a public tender process for the acquisition of an integrated elections management system in order to give a direct award to a company known as Morpho, the same company that provided the problematic BVR kits in 2013.
The doubts that have arisen as a result of the above issues have been compounded by the IEBC’s refusal to make the register publicly accessible. In fact, the IEBC did not even provide the updated register to political parties during their primaries. The lack of the register made it impossible for parties to confirm that voters were in fact registered, and this contributed to the chaos that characterized the primary processes. The IEBC has also refused to give the data to civil society on the grounds that it cannot release it until after the audit is complete. Without access to the pre- and post-audit data, however, it is impossible for the public to conduct its own analyses and understand the changes.
A related issue is that of the integrated election management system (IEMS) itself. According to the IEBC, the system is meant to be wholly integrated, such that voter registration, voter identification and results transmission are linked. Since the IEMS technology did not arrive until well after the conclusion of registration, however, it is unclear how all the components will be linked, if at all.
ELECTION DAY, COUNTING AND TALLYING
Confidence is also, of course, based on the credibility of results announcements. In 2013, the IEBC used an electronic results transmission system, which was designed to allow polling station officers to transmit results to regional tallying centres and to IEBC headquarters in Nairobi via a secure, digital connection. This system was meant to protect the credibility of the count and prevent the kind of manipulation that had been seen in past elections, which often occurred during the time when tally sheets were being physically transported from polling stations around the country to Nairobi. Unfortunately, however, the system was a spectacular failure. Midway through the counting process, Kenyans watched the stream of live results freeze on television screens. Journalists based at the Bomas of Kenya, which was the national elections centre, referred to it as the Bomas screen saver.
When the electronic system failed, the IEBC again relied on the paper forms, which had to be ferried from all over the country to Nairobi. As expected, the paper forms were highly problematic. Issues with the polling station-level tallying forms (Forms 34) included:
- Many Form 34s showed that there were more votes cast than registered voters. In Turbo constituency, Polling Station 69, Stream 2, there were 784 votes cast but only 755 registered voters. In Polling Station 71, Stream 2, there were 741 votes cast but only 716 registered voters. In Kacheliba, Polling Station 112, there were 215 votes cast but only 214 registered voters.
- In some Form 34s, only some presidential candidates were listed. For example, in Baringo South, Polling Station 91, Stream 1, it was only the names of Uhuru Kenyatta, Raila Odinga and Paul Muite that appeared. Some candidates were also missing from Form 34 in Baringo South, Polling Station 68, Stream 1.
- Many of the figures on the form did not add up. For instance, one of the most glaring discrepancies occurred in Kacheliba constituency, Polling Station 102. Here, the votes cast are recorded as 0, while there are 170 rejected votes and 170 valid votes. In Baringo South, Polling Station 117, Stream 1, there were 133 valid votes and 0 rejected votes, which should total 133 votes cast. The figure for votes cast, however, was 134. In Cherangany, Polling Station 2, Stream 5, the number of valid votes is 332 and the number of rejected votes is 4, which adds up to 336 total votes cast. The number of votes cast, however, was 340. In Turkana North, Polling Station 12, the number of votes cast (340) did not equal the number of valid votes (340) plus the number of rejected votes (5).
- There were several instances of changes having been made to various figures on the form, with no authorizing signature next to the change. Such alterations affected individual candidates’ results, the total number of votes cast, the number of rejected votes, the number of valid votes and the number of registered voters. This change had the potential to affect other numbers on the form. For instance, a change to the number of rejected votes would necessarily change the number of total votes cast.
- In some forms, there was no figure indicating the number of registered voters. There was no official Form 34 for Polling Station 19 in Turkana Central. Instead, the results were reported on an ordinary piece of paper, which did not include the number of registered voters.
- Many Form 34s were missing. There was no Form 34 for Polling Station 84 or for Polling Station 99 in Turkana North. Polling Station 99 did not appear on the list of polling stations published on the IEBC website on February 24, 2013, but it did appear in the paper gazette. Forms 34 for Polling Stations 92 and 113 in Turkana Central were missing.
- Some forms did not include results for certain candidates. In Turkana Central, Polling Station 55, there were no results listed for Muite and Kenneth. In Turkana Central, Polling Station 65, there were no results listed for Kiyiapi, Karua, Dida, Muite and Mudavadi.
- There were non-identical duplicates of certain forms. In Turkana Central, Polling Station 89, there are 4 nearly identical copies of Form 34. It is unclear whether the numbers on these forms were counted multiple times. In Kacheliba, Polling Station 2, there were two forms with different entries. There were also multiple copies of perfectly identical forms, and it was unclear whether or not these figures were counted more than once.
- There were many forms in which it was extremely difficult to determine the exact value of the written figure, either because of the handwriting or because the original figure had been written over with another number. There were an overwhelming number of such cases, and the choice of which number to report was subjective.
The most worrying issues called the very accuracy of the count into question.
The failure of the electronic system was not a complete surprise. In the month before the 2013 election, tests of the electronic systems revealed significant problems. In fact, Sarah Elderkin detailed how a test of the system “had gone horribly wrong.” After one hour, only one of five mock polling stations could successfully transmit results. In this election cycle, the IEBC again plans to use an electronic system. The IEMS, mentioned above, includes results transmission. It is unclear, however, if and when the IEBC will publicly test the kits and publicly explain its plans for the kits’ dysfunction or failure. In fact, one of the most pressing unanswered questions in this cycle is related to proposed back up systems. New amendments to the electoral law allow for the use of complementary registration, identification and results transmission mechanisms, to be used in the event that the technology fails. To date, however, the election regulations only provide vague provisions about using the printed out register for voter identification in cases where voters cannot be found in the biometric list. The regulations do not clarify what, if any, complementary systems will be used in case the electronic results transmission system fails.
The lack of a clear definition of these complementary mechanisms is highly problematic, especially given Kenya’s political history and context. During mass voter registration, the IEBC used the green book in conjunction with the BVR kits. Does this mean that the green book was the complementary mechanism with regard to voter registration? Will the green book be used in addition to the printed out register to identify voters on election day?
Midway through the counting process, Kenyans watched the stream of live results freeze on television screens. Journalists based at the Bomas of Kenya, which was the national elections centre, referred to it as the Bomas screen saver.
There is one significant difference with regard to the law in the current election cycle. The High Court recently ruled that constituency level results for all elections are final and can only be appealed through a court process. The decision nullified Section 83(4) of the General Elections Regulations, which empowers the IEBC to “confirm” results before announcing them as final. The IEBC filed an appeal to the decision, with IEBC Chair Wafula Chebukati stating that constituency level officers could “make mistakes.” The IEBC’s decision to appeal has sparked some controversy, with the opposition threatening that there will be no election if the IEBC does not abandon its appeal and alleging that it means the Commission wants the power to unfairly change results. Civil society has also expressed its reservations about the appeal, suggesting that it erodes public confidence in the IEBC’s commitment to upholding the law.
Given the extreme controversy and suspicion surrounding the announcement of results in 2013 and in other past elections, the IEBC should acknowledge that there is significant public concern around the potential use of manual systems. To promote public faith, the IEBC should explain its rationale regarding the appeal. If constituency level results are erroneous, as Chebukati fears, a court process to address such problems would allow the public to see and understand the issues at hand. It would promote transparency. Surely, this option is better than a closed process in which the IEBC changes constituency results at the national tallying centre.
As it currently stands, it is unclear whether the IEBC and other stakeholders have learned from past elections. If public confidence is a priority, these stakeholders must immediately respond – at minimum – to the above public concerns in an honest and open way, remembering that it is voters who hold the power at this stage of the game, and it is voters who will ultimately decide the credibility of the election. The legitimacy of the upcoming election now hangs in the balance, but there is still time to save it…if only we are willing to learn from the past.
THE BATTLE FOR KENYA’S SOUL: Will history absolve them?
Perhaps the timing was wrong. Or just right. Soon after the Miguna Miguna arrest-and-deportation circus began, I opened an autobiography I had just been gifted. The book, Walking in Kenyatta’s Struggles, by Duncan Ndegwa, came highly recommended. Little did I know what I was in for.
Duncan Ndegwa was Kenya’s first Head of Civil Service and its second Central Bank Governor. He was in the sanctum sanctorum in those early years. His story promised to be insightful, if not tantalising, revealing the many struggles Kenya’s first president, Jomo Kenyatta, faced. But it made me angry.
I wasn’t sure why I got angrier and angrier after I got past the diversionary chapters on culture. But I did. Eventually, I scanned through my notes and scribbled them in pencil on one of the blank pages at the back of the book. Then it all made sense. I was reading the past while it was happening in my present. If the past was ever a prologue, Kenya in 2018 is it. We are stuck in a destructive cycle.
Quick, try placing these two statements in the last five decades of Kenya’s history:
- He openly warned the media against misusing press freedom to “misinform the public”.
- He was charged with treason, which was later changed to the lesser crime of incitement.
The first entry is from a speech by Tom Mboya in 1962, but those words have been used many times since. They could as well have been said by Argwings Kodhek, or his boss Jomo. Or in 1979, when newspapers were ordered not to publish an opinion poll. Or by Kalonzo Musyoka in 1990, when he filed a motion to ban a newspaper from covering Parliament proceedings. They could even be taken from John Michuki’s infamous “if you rattle a snake” retort.
The second statement refers to the short-lived treason charge against Maina Kamanda in 2001. He had said that President Daniel arap Moi should be shot in bed if he tried to extend his term. The charge of treason, the crime of betraying one’s country, has been a constant threat against outspoken opposition MPs since independence. Whether applied in 1971 or in 2018, this weighty threat is still firmly in place.
The way the state speaks with those it governs has barely evolved over the last six decades. That’s because although the faces have changed, the essence of the state hasn’t; it hasn’t even kept up with those it governs.
You’ve heard both phrases lately, and you will hear them again. These are what the academic Joyce Nyairo calls “the grammar of the state”. The way the state speaks with those it governs has barely evolved over the last six decades. That’s because although the faces have changed, the essence of the state hasn’t; it hasn’t even kept up with those it governs.
Tyranny of the accursed
In many ways, the last decade has felt like a marathon through the first 30 years after independence. The son wants to eradicate the same things that his father promised to focus on 55 years ago. Detention without trial is back. We have launched wars on human rights, a new constitution, devolution, and Somalia. The concerted effort to reset to the KANU code is in full gear. We are back to essentially a one-party state with a growing greed and hold on all arms of government. We have the makings of a Sun King who can do no wrong, and in whose wisdom and undying love for our wellbeing we must trust.
There’s a tough-talking Interior Cabinet Minister with a disdain for the law and basic decency. Our maize scandals are now an annual thing and pilfering from the state is now a legitimate way to join the upper ranks of society. A fake political rivalry continues to eclipse real social and economic issues. Politics has become entertainment in all but name, an expensive escape from realities. We are now numb to theft of land, taxes, and even borrowed money, in this dark comedy.
This reality is not accidental; it was the entire purpose of the creation of the Kenyan state. In his treatise on this, Darius Okolla says that this founding ethos of the colony never went away. In fact, in the last sixty years and four presidents later, it is even more entrenched. Now as then, the needs of a few appear as the needs of the many, as do their problems. “Personal problems” are not the same as the “you” in “security starts with you”.
Of the many adjectives Okolla uses to describe the Kenyan elite, the one that sticks out the most, is “zombie”. The image of the undead it conjures is a reminder that while elites may try to extricate themselves from the society they actively ruin, they cannot detach themselves from it. The problem is their myopic view of what the Kenyan state could be, as becomes clear in Ndegwa’s memoirs. The men around Jomo deified him, and even when he was senile and dying, shielded him like one would a monarch. It wasn’t Jomo the man, or the icon, that they worshipped, but the head of this zombie elite. He wasn’t just actively refusing to build a formidable Kenyan state; he was leading the way in destroying it.
A constant argument I’ve heard is that it was important for Jomo and Moi to rule as they did because they had inherited a traumatised society. The argument is that such a society is fragile and needs a firm hand to guide it through the healing process. It is the dangerous justification for “benevolent dictatorship”. That firmer hand promised repeatedly by Jubilee mandarins before and after the last election is a slippery slope. It is the same one with which the opposition handles its internal elections. This argument is back in our news diet, based on the same laws and ideals. What’s missing from it is that this “firmer hand” traumatised society in more ways than the colonial unit had, more so because the black aristocracy had no direction or plan beyond acquisition.
Publicly, and in such personal records as memoirs, this elite class continuously pretends it worked for the good of the country. But it turns out that our definition of country differs. For them it was a running plantation that requires little or no input, where a slave working class is either a vote, a weapon, a taxpayer, or all three. To keep this intact, the greatest inheritance Uhuru’s fathers left him was an assortment of oppressive colonial laws. They retained that same colonial attitude to dissent, peasant revolutions, and oaths. Laws on treason, sedition and secession remained untouched. Some were even shored up and legitimised as necessary, such as the Emergency laws.
Of the many adjectives Okolla uses to describe the Kenyan elite, the one that sticks out the most, is “zombie”. The image of the undead it conjures is a reminder that while elites may try to extricate themselves from the society they actively ruin, they cannot detach themselves from it.
Inherited from a monarchy, these laws were designed to protect and deify the throne. They protected their perceived God-given right to rule, and fenced off the rituals, like oathing, that even attempted to challenge this. For example, the law used to arrest Miguna Miguna was passed in 1955 to fight the peasant irredentism that was the Mau Mau. Another interesting fight in the last five years was whether governors could fly official flags on their cars. In a pseudo-monarchy, the symbols of power, such as flags and oaths, must be protected to legitimise the power of the few, even among themselves. Yet that legitimacy remains shaky at best.
The identity problem
Two significant events will take place between now and 2020. The first is a census, in 2019, that will no doubt be assessed more for its political meaning than its socio-economic importance. We will be on the upper layers of 51 million people by the end of this year, with a net gain of one person every 25 seconds. Most of this population is under 25, and with a life expectancy of 62 years, is not even halfway through its lifespan.
Yet, given our deliberate and structured apathy to the destructive parts of our history, it will not be a surprise if the same conversations are still around in 40 years. Then, on June 11, 2020, most of mainland Kenya will mark a century since it was carved out as a colony. The 12-mile coastal strip will follow two months later, and the north five years after that. With that, the entire patchwork that is the Kenyan state will be a century-old. But the Kenyans within this boardroom experiment will still be struggling with what exactly it means to be Kenyan. Kenyanness is still a weapon, as shown by the cases of Ernsteine Kiano, Sheikh Khalid Balala, Miguna Miguna and Mohammed Sirat. All four found themselves “unKenyaned” for their personal and political stands, as if being born in a particular place (or married in, in the case of Ernsteine) should not be the foundation of all rights and inheritances.
Our zombie elite, united only in greed, has ensured that it remains the main cast. Their whims and fights steal newspaper acreage from the people. It is not just about publicity; it is part of their innate desire to live forever, to be “remembered well” even when they have done bad things. It is a blood relative who, after years of self-imposed exile, returns to the family fold when he’s diagnosed with a terminal disease. His reason? Because he needs his people to bury him.
In Ndegwa’s book, there’s a way he talks about the Shifta War that is both condescending and revealing. First, the state of emergency that allowed Jomo and Moi to rule the North-East by decree was illegal. Ndegwa says as much, but cheekily defends it as a necessary breach of the law. Second, there is an appalling distance in the way he talks about an attempt to deport all Somalis from Eastleigh, and his failure to follow an order from his boss in a related event. The worst thing about this “othering” is that it is not unique to him or to the Jomo administration; it is a tool used by politicians even today.
The future of the Kenyan experiment
There is no Kenyan identity to reclaim. It has never existed, and there’s a possibility it might never exist. There are layers, yes, between officialdom and what we actually are and want to be.
I encountered this properly when I wrote “Nicholas Biwott was Not a Good Man” in response to the flurry of hagiographies that followed his death. The things in that obituary were common knowledge, but they were missing from the most read obituaries. My article was followed by statements like “Africans don’t speak ill of the dead”, which is a lie. My subject had himself been obsessed with his legacy, probably being the first among Kenya’s elite who paid to have the Internet scrub off any bad stories about him. If anything, Biwott epitomised the murk of the zombie elite. For him, the problem wasn’t that he wasn’t contrite about the lives he had ruined in his quest for wealth and power, but how history remembered him. He escalated (and demanded) the official silence we somehow now believe was a precolonial thing. We collectively censor “bad” stories about public figures, in much the same way that sexual predators roamed Hollywood for decades, unpunished.
Our zombie elite, united only in greed, has ensured that it remains the main cast. Their whims and fights steal newspaper acreage from the people. It is not just about publicity; it is part of their innate desire to live forever, to be “remembered well” even when they have done bad things.
But the problem is that when official histories are written, people like him will get away with their contribution to the stagnation of the Kenyan state. Their concerted efforts to keep our identity in stasis, by both feeding off the land and actively trying to shape how such stories survive, will be lost in the threads of history. The elite of the day will actually promote this, not because of any other reason but a desire to sustain this destructive form of memory. It will still permeate through our social networks as if death, by itself the only certainty, somehow cleanses one of all the evil one has done.
In The Burden of History, American historian Hayden V. White wrote that “…we require a history that will educate us to discontinuity more than ever before; for discontinuity, disruption, and chaos is our lot.” There’s nothing like an objective history, White argued, because while historical facts are scientifically verifiable, stories are not. And societies are built on stories. If you control a society’s stories, whether through censorship, tyranny, litigation or official narratives, you control its future.
Here, the resurgence of the KANU state is not as scary as it should be because we are eternal optimists. Because in the way stories are distilled, present-day problems are new and the solutions for them haven’t been tried before. Our institutionalised amnesia is not accidental, and neither is our official silence. But in our homes, and in bars and next to church noticeboards, we whisper to each other about the true state of the nation. We have learnt to accept the dichotomy between what makes it to official history, which includes media and eulogies, and what we discuss outside of it. This allows us to live double lives, and to drive our society further up the pedestal from which it will eventually collapse.
Our institutionalised amnesia is not accidental, and neither is our official silence. But in our homes, and in bars and next to church noticeboards, we whisper to each other about the true state of the nation.
In a discussion I had about Ndegwa’s memoirs, an acquaintance told me I was being harsh on the old man. I offered that the purpose of memoirs is not just to tell one’s story for one’s legacy, but to fit it in a slot in the sands of time. Its purpose is to invite us into a journey that is not our own, to see and experience a different life. It is not just that we might learn something about the author, but that we might also learn something about ourselves. What I learnt about us from that book is that we are stuck in a cycle that can’t be sustained.
That was primarily why Walking in Kenyatta’s Struggles pissed me off so much. In Ndegwa’s boastful stories about how he and others deliberately undermined devolution, subverted the constitution and ostracised entire regions, I saw the men and women around Uhuru Kenyatta today. When they are aging and obsessed about their legacy, they will try to justify turning Kenya into the tyranny it is swiftly becoming. Memoirs will speak of the common good that is national security, and why ignoring court orders was the only choice. They will celebrate the handshakes and the failed projects. People who are actively destroying this society today will become “statesmen” and “stateswomen”.
And the taxpayers in this jua kali nation will let this be. In the coming years, they might even replace them in the list of great nation builders.
But will history absolve them?
HOW TO LOOT AN AFRICAN COUNTRY: Will unsustainable debts lead to state capture in Uganda?
In January 2018, at the annual Makerere University Tumusiime-Mutebile Centre of Excellence (TMCE) Business Dialogue, the Ugandan Minister of Internal Affairs, Ruhakana Rugunda, stated that Uganda was now in a position to finance 70% of its budget. However, despite the rosy declaration by the National Resistance Movement stalwart, all indications point to an economy in free fall and one not poised to make major economic breakthroughs.
Basic healthcare remains a serious challenge: despite a commitment made with several other African countries to allocating 15% of their budgets to the health sector, Uganda allocates less than 10% (just over 6% this year) of its budget to health. A cholera outbreak in western Uganda in late 2017 signaled yet another drug stock-out. There were reports from the central region of a lack of drugs to treat hepatitis-B. A major drug and consumables (e.g. gloves) shortage was also reported in Mbale in eastern Uganda in January 2018. The Mbale Regional Referral Hospital, which serves a catchment area of four million people, had received no drug consignments for two months.
Then in February this year, the Parliamentary Accounts Committee announced that a loan taken in 2016, in part to pay for drugs bought by the National Medical Stores, was not in fact passed on to the organisations for which it was borrowed. The Speaker of Parliament ordered a special audit to establish the use of the money.
At the beginning of the year, news filtered through that universal secondary education was being scaled back, with the facility being closed in some 800 private schools that have been implementing it through public-private partnerships. Over 200,000 students are expected to be affected.
The Secretary to the Treasury, Keith Muhakanizi, has so far explained that the funds were used for general budget support required in the last fiscal year: to plug a UGX 288 billion revenue shortfall, supplementary expenditure of UGX156 billion, and to substitute more expensive domestic borrowing amounting to 280 billion Uganda shillings.
Parliament is up in arms because when approval for the loan for budget support was first sought, it was rejected. Following a revised request emphasising the need for essential drugs, the request was approved. However, Parliament says it was duped as the beneficiaries were never advised about the arrival of the funds.
Muhakanizi is adamant that the money was banked in the government’s consolidated fund, along with all other sources of funds, and disbursed in the usual manner. One source says it is clear from the loan documents that it was never tied to the purchase of drugs. Furthermore, it appears that Parliament approved the loan on verbal presentations as to its usage, not on the loan documents. If this is so (the Auditor General is still investigating), then Parliament has revealed itself to be negligent in scrutinising and approving loans.
The underlying problem appears to be that, even with the PTA loan, there were simply insufficient funds for government business and the Treasury was unable to disburse all the money required by all sectors, even for essential expenditure like drugs. (Non-essential expenditure seems easier. It will be remembered that in 2016 a gratuity of UGX6.2 billion was paid by the President to 42 celebrity public servants as a reward for carrying out their ordinary duties. The Secretary to the Treasury was part of this privileged group.)
Contrary to Rugunda’s misleading claims in January and talk of an “economic take-off”, the country is in fact struggling to finance 47% of its budget through revenues, according to Parliament Watch, an independent NGO; the other 53% is to be financed by more loans.
The cash crisis persisted in 2018. At the beginning of the year, news filtered through that universal secondary education was being scaled back, with the facility being closed in some 800 private schools that have been implementing it through public-private partnerships. Over 200,000 students are expected to be affected.
This is not surprising as there has been a shortfall in expected revenues of UGX300 billion in the first half of the current fiscal year, according to the Finance Minister, Matia Kasaija. The shortfall is expected to double by the end of the year. By way of explanation, Kasaija claims that the budget estimates for 2017/1018 were wrong in some cases and there have been unexpected expenditures in others. The upshot, says Kasaija, is that ministries, departments and agencies have put in requests for an extra UGX2.3 trillion. This is needed for salaries, pensions, security and social assistance grants to low-income households, energy, as well as for the development budget. So far, only 38% (870 billion) of the excess expenditure has been approved in supplementary budgets.
Speaking of energy, Uganda is also experiencing a shortage of petrol. As with all fuel shortages, explanations include the refurbishment of infrastructure for the storage and transport of fuel, limited international supplies, delays in the construction of a pipeline from Kenya to Uganda, Kenyans, and myriad other excuses. What is not clear is why Uganda’s statutory fuel reserves are not replenished and in fact reserved for such emergencies. Why are the fuel reserves sold on the open market?
At the time of writing, news of the Uganda Police’s budget woes broke. The latest quarterly treasury release of UGX137 billion is sufficient only to fund operations at the Inspector General of Police’s headquarters and in three administrative regions, namely, Kampala Metropolitan, East Kyoga, Sipi and East Rwenzori. This means other operations, including criminal investigations and intelligence in Northern, Central and much of Western Uganda, are not funded. The Inspector General of Police has explained that operations will be rotated i.e. the next release will be used on operations in the areas that lost out this time.
Even though food is provided for, the association of police suppliers has suspended supplies while it demands payment of UGX 33 billion in arrears. This figure almost exactly matches the amount the police expects to spend on tear gas alone in a year. Total police arrears amount to UGX125 billion or a quarter of the annual budget. Suppliers have claimed that they are often threatened when pushing for payment.
The Indian entrepreneur Anil Agarwal who bought Konkola tells the story of how he did not even have US$4 million at his disposal when he approached the Zambian government but “took a chance” and offered US$25 million for the mines. There may be some details missing from his account, but he claims that some months later, when he had forgotten about his offer, he received a telephone call from Zambia and a voice said, “The mines are yours.”
Primary health, education and transport – all designated as priority areas for development – are affected by what can only be the slow-motion collapse of the Ugandan economy. Contrary to Rugunda’s misleading claims in January and talk of an “economic take-off”, the country is in fact struggling to finance 47% of its budget through revenues, according to Parliament Watch, an independent NGO; the other 53% is to be financed by more loans. Foreign exchange fluctuations and further falls in commodity prices could make the situation worse.
Konkola, Hambantota and other stories
The trouble with loans to administratively weak countries and to full-on captured states is that they are irresponsibly used and are unsustainable. It is also public knowledge that significant portions of public funds, which would include loans and grants made to the government of Uganda, if not squandered are stolen outright.
Unsustainable debt will eventually lead to a loss of Uganda’s ability to even generate income. Prime examples of this dynamic would be the Konkola Copper Mines in Zambia, Hambantota Harbour in Sri Lanka and Mozambique’s liquid natural gas deposits.
In 2014, under pressure from the World Bank to repay its debt, the Government of Zambia sought to sell Konkola, Zambia’s largest copper mines. The price was set at US$400 million, presumably after professional evaluation of Konkola’s potential revenues. The Indian entrepreneur Anil Agarwal who bought Konkola tells the story of how he did not even have US$4 million at his disposal when he approached the Zambian government but “took a chance” and offered US$25 million for the mines. There may be some details missing from his account, but he claims that some months later, when he had forgotten about his offer, he received a telephone call from Zambia and a voice said, “The mines are yours.”
He then found himself in the presence of President Mwanawasa and later the Zambian Parliament, being hailed as a great man. Addressing an investment conference in Bangalore in 2014, Agarwal boasted that Konkola had earned his company, Vedanta, between US$500 million and US$1 billion annually since he bought it – more than even its original sale price.
Another example is from Hambantota on the southern tip of Sri Lanka, which derives from an ancient civilization noted for its irrigation and prosperous salt production industry. The harbour is the site of a port built in 2010 with a loan from China. A feasibility study for international ship-building, repair and freight services looked good on paper. However, like Uganda’s budgets, the feasibility study did not pan out and Sri Lanka defaulted on the loan repayments. Under the terms of the agreement, the harbour became the property of China for the next 99 years. There was an outcry, of course. Issues such as the initial viability of the loan were raised. Readjustments followed and now the harbour is a joint venture between China and Sri Lanka. Joint ventures managed by economic predators are no more profitable than unsustainable loans.
The existence and terms of loans – the properties mortgaged – remain a state secret. It is possible that when (not if) Uganda defaults, public assets or whole districts could become the property of the People’s Republic of China, just like Hambantota harbour.
More recently, in 2017, Mozambique lost future revenue from newly discovered natural gas deposits when the government defaulted on secret loans of US$2 billion. There too, a dodgy feasibility study showed that the loan was sustainable but it turns out it will take Mozambique ten years and most of the gas income to cover the loan and penalties for defaulting. The military and fishing equipment that it was ostensibly used for was being searched for by an international audit firm. The fishing fleet bought with some of the funds was rusting in dock as the business proved to be a loss-maker from the start. The government admitted that the fishing project was, in fact, a front for military acquisitions.
Of the many accounts of the Mozambican debt crisis, Ugandans and citizens of other developing countries should at least read the one by Bodo Ellmers of the Committee for the Abolition of Illegitimate Debt, if only to form an idea of how our own oil discoveries could be squandered even before commercial production begins.
Naturally, after following developments in Zambia, Sri Lanka and Mozambique, one becomes nervous about Uganda’s situation. The existence and terms of loans – the properties mortgaged – remain a state secret. It is possible that when (not if) Uganda defaults, public assets or whole districts could become the property of the People’s Republic of China, just like Hambantota harbour. Chinese extractors are already mining the Lweera Wetland for sand at an industrial rate. The question is, could this official departure from national environmental policy be part of a secret concession sold to the Chinese by the usual suspects?
Is there a danger that title to or rights in other state assets will be or have been transferred to someone like Anil Agarwal or the Guptas, now that the latter have been flushed out of South Africa? It is a reasonable question, patriotic even, given that Uganda is a veteran of cartoonish business deals.
Uganda is still in the normalisation-of-fraud phase during which the illusion of a country on the move is perpetuated.
A recent Department of Justice statement revealed the modus operandi for looting state assets employed by predator “investors” and their local agents when it charged one Patrick Ho with bribing the Foreign Minister, Sam Kutesa, in return for assorted business favours for a Chinese state entity. These costly concessions included, but were not limited to, direct access to the President (resulting in) extended tax holidays, free land by the square kilometer, forests, transfers of public machinery and plants on promises of future payments after they become profitable, and so on. It is in the public interest that Parliament investigates the sustainability of Uganda’s entire debt burden and what the country stands to lose in the event of a default.
Restitution of control
The process of recovery from this parlous state will not be easy. Taking South Africa as an example, a state under the control of regime stalwarts and foreign divestors – the Gupta brothers – it took the constant coordinated efforts of the Economic Freedom Fighters to oust ex-President Jacob Zuma by: a) keeping the public informed about the inner workings of the regime; and b) naming the perpetrators. Working within the law, the EFF rejected attempts to normalise state capture by repeatedly bringing government business in Parliament to a halt. The resulting international spotlight on South Africa made Zuma’s position untenable. He resigned days after he was unable to make a last State of the Nation address.
Uganda is still in the normalisation-of-fraud phase during which the illusion of a country on the move is perpetuated. Increasingly elaborate state functions, like the Budget Speech, the State of the Nation address and Independence and Heroes day celebrations belie the desperate realities.
Meanwhile, envoys from complicit countries continue to make high-profile visits to Ugandan government officials, even those implicated in financial scandals. The World Bank and the International Monetary Fund churn out evaluation reports deliberately fabricating achievements and downplaying the impact of failures in administrative and economic reforms. Concrete examples can be found in the evaluation of the Economic and Financial Management Programme, the Public Service Performance Enhancement Programme and the Education Sector Adjustment Credit. 
Until the Ugandan Parliament recognises the capture of the state for what it is, and by whom, and becomes serious about scrutinising public debt, Uganda is going nowhere.
 For records of misleading World Bank reports on Ugandan projects, see Mary Serumaga, The case for repudiation of Uganda’s public debt, 8 December 2017 by Mary Serumaga published by the Committee for Repudiation of Illegitimate Debt.
WADING INTO TROUBLED WATERS: A message to Kenya’s youth
*This reflection is dedicated to my spiritual son, Jesse Masai, and several others like him who constantly wrestle with the question of their responsibility to the Republic in this season.
An old proverb says, “We have not inherited this land from our forebears, we have borrowed it from our children.” Here, we are debtors and owe our children a prosperous future.
The extent to which we develop our democratic institutions, entrench the rule of law and build a prosperous economy shows our obligation towards them. The dream of a land of freedom, where individual rights are guaranteed and where all prosper is fast turning into a frightening nightmare. The once-abhorred Nyayo era, marked with authoritarianism, state terror, press censorship and violation of human rights is back with a vengeance.
Throughout my writings, I have strenuously been trying to be non-partisan on party politics. This then is the article I thought I would never write: a candid assertion that a certain form of partisanship is now a moral necessity. The Jubilee government, as an institution, has become a danger to the rule of law and to the integrity of our democracy. The problem is not just President Uhuru Kenyatta; it’s the larger political apparatus, including Parliament, that made a conscious decision to enable him.
In a multi-party system, non-partisanship works only if all players are consistent democratic actors and subject to independent institutions that safeguard democracy. If one of them is not predictably so, the space for non-partisanship evaporates. I am thus driven to believe that the best hope of defending the country from Uhuru’s Jubilee enablers and saving the nation is to stage a public protest as Muthoni Nyanjiru and Nobel Laurent Professor Wangari Maathai did in 1922 and 1992, respectively. Protest against the government and Parliament until they get it right or implode!
The Jubilee government, as an institution, has become a danger to the rule of law and to the integrity of our democracy.
How can a prosperous future for our children be realised under these conditions? This is not how we pay the debt we owe our children. Today’s youth must not allow us to squander that future. There is an urgent voice calling for action now: “Wade in the waters, children…” Can’t we hear it?
The legendary Harriet Tubman, also known as “Moses” (who once had a US$40,000 price tag on her head for “slave stealing”), sung this song to alert the runaway slaves she guided to freedom. The song signaled to runaways: “Use the river so the hounds can’t trace you. Tonight is the moment for flight; move swiftly; the reaction will be fierce.” Harriet speaks to us today: Now is the time: stop this backsliding, “wade into the waters”, free our children from slavery. Wade into the waters, children!
This advice does not seem smart at first. Why would one want to jump into waters that God stirred up (described in the Bible as troubled)? For many Kenyans, the failure of the opposition NASA to guide them to Canaan is troubled waters. Under persistent attacks – many of them seemingly minor – democratic institutions in Kenya have been eroded gradually until they have failed. The undermining of the independence of the electoral commission, the police service and the free press has rendered our democratic process useless. Our waters are troubled in at least two possible ways.
Lately, we have come to regard the government as a danger to the Constitution of Kenya 2010. It has proved unable or unwilling to block assaults on the rule of law. If these assaults are normalised, they will pose an existential threat to Kenya’s future.
Secondly, our economy is being shackled with foreign debt. This act makes a mockery of the 2000 Jubilee campaign that pushed Western countries to forgive crippling foreign debts of the world’s poorest countries, including Kenya. It is irresponsible to deliberately and unnecessarily enslave our children’s future in debt, erasing their future ability to compete in this world.
There is an urgent voice calling for action now: “Wade in the waters, children…” Can’t we hear it?
Francis A. Schaeffer, warning in his book How Should We Then Live? is instructive to us in Kenya: “If we…do not speak out as authoritarian governments grow from within or come from outside, eventually we or our children will be the enemy of society and the state. No truly authoritarian government can tolerate those who have real absolute by which to judge its arbitrary absolutes and who speak out and act upon that absolute.”
A similar situation is playing out in a Kenya that negates the government’s claim to construct a prosperous future for our children. Instead of addressing these challenges, the government elects to shut down media channels that expose its incompetency and locks up critics who question its legitimacy. This is a perfect recipe for national rebellion.
Fredrick Douglas warned: “The thing that is worse than rebellion is the thing that causes rebellion.” Failure to address the causes of disquiet – and instead opting to use unconstitutional means to silence people – will be the Achilles heel of this government. This may have a tragic ending.
When Laius, the King of Thebes, is told by the Oracle of Delphi that his son will kill him and sleep with his mother Jocasta, the king pierces his baby son’s ankles and leaves him on a mountainside to die. This becomes the first of a sequence of events that leads to the Oracle’s prophesy being fulfilled. For a shepherd finds the baby and takes him to King Polybus and Queen Merope of Corinth, who name him Oedipus and raise him as their own.
Failure to address the causes of disquiet – and instead opting to use unconstitutional means to silence people – will be the Achilles heel of this government. This may have a tragic ending.
Later, Oedipus seeks the help of the Oracle of Delphi to know his parentage. The Oracle tells him that he’s destined to kill his father and sleep with his mother. Oedipus tries to run from this fate, but ends up running right into it. He kills Laius in a scuffle at a crossroads, not knowing he’s his real father. Later, he wins the throne of Thebes and unknowingly marries his mother, Jocasta, after answering the riddle of the Sphinx. When they figure out the truth, Jocasta hangs herself and Oedipus stabs out his own eyes. The Greek story ends in tragedy.
In the spiritual song – Wade in the Waters – those who will be blessed are urged to step into the waters first, before the angel of God comes. The song stresses meeting hardships with courage and “steady” faith; gather now and get ready, the healing is promised. Gather now, so that all will be among the first received and delivered by the gifts of grace that spring forth in dark times. While addressing young Germans in Stuttgart on the need to stand for human dignity, former United Nations Secretary-General Dr. Kofi Annan said: “You are not too young to lead, for to lead means to take responsibility and set example.” He explained, “When leaders fail to lead, the people can lead and make leaders follow.” For this very reason, youth in this country must wade in the waters and assume leadership to save their future.
But can we rely on the youth to deliver?
Harris Okongo Arara went to Chianda High School in Uyoma, Siaya County, the same school I attended. He was the best footballer and hockey player that the school ever produced. Upon completing his studies, Arara joined the Kenya Air Force. When he was in his 20s, he became an activist for change and courageously led the fight to end one-party dictatorship in Kenya. What he told a Nairobi court about to sentence him to jail for sedition on September 24, 1988, expressed the values he stood for and the vision he had for Kenya. He declined to plead for leniency or mercy. With confidence, he dismissed the courts’ right to judge him. Arara questioned why he should seek personal mercy while millions of Kenyans lived in misery. He was proud to join the company of those he called apostles, who attempted to rescue justice but found themselves in detention, prison or exile. He said:
The people of this nation are simply demanding their fundamental rights and freedoms. They are simply demanding their rights to a decent living, right to education, right to proper medical care, right to housing. In short, the right to be human beings. If that is sedition, so be it. These are the goals for which I have always fought, and for which I am prepared to die.
Arara was sentenced to a five-year jail term. This was his second stint in jail, having been in detention without trial for six years following the 1982 coup attempt. Arara had only been free for eight months at the time of this sentencing. He was wading into the troubled waters of the Nyayo era.
We learn history because through it we understand the sacrifices that were made before, so that when we make sacrifices we understand we’re doing it on behalf of future generations. It is possible to resist oppressive laws enacted by Parliament that undermine the Constitution and degrade human dignity.
In 1922, for instance, 27-years old Harry Thuku, the leader of the East African Association, was arrested for acting and speaking against “forced labour of women on the roads”. Officials of the nationalist association rallied African workers in Nairobi to go on strike. On March 15, transport workers, domestic workers and government employees deserted their workplaces and gathered in front of the police station where Thuku was being held. Makhan Singh, in History of Kenya’s Trade Union Movement to 1952, wrote: “As the crowd grew, a deputation of the East African Association, including Jomo Kenyatta, held a meeting with Acting Governor Sir Charles Bowring in his office.”
According to Audrey Wipper, who wrote the chapter “Kikuyu Women and the Harry Thuku Disturbances: Some Uniformities of Female Militancy in the Africa” in the Journal of the International African Institute, Nyanjiru and her stepdaughter, Elizabeth Waruiru, were among the city’s female workers who came out to demonstrate. Nyanjiru was a Kikuyu woman who had moved from the village of Weithaga in the native reserves to Nairobi. Addressing the strikers, Jomo Kenyatta announced the deal the East African Association deputies had reached with the governor: Thuku could not be released, but the governor had promised him a fair trial. He then urged the demonstrators to disperse.
It is possible to resist oppressive laws enacted by Parliament that undermine the Constitution and degrade human dignity.
Nyanjiru stood in the front of the crowd near Kenyatta as the demonstrators began leaving. She threw her dress over her shoulders and exposed her naked body, taunting the cowardice of the men and challenging them to stand up to Kenyatta. (In Ngugi wa Thiong’o’s A Grain of Wheat, Nyanjiru is presented as a woman who is incensed by men’s impotency against colonial oppression. She challenges men to swap their trousers for women’s skirts.) Nyanjiru threatened to lead the demand for Harry Thuku’s release if the men were too cowardly to do it.
The 300 women present ululated loudly. The strikers were galvanised by Nyanjiru’s actions and the women’s call to battle. Men who were beginning to disperse returned. A large section of the crowd rushed forward towards the armed guards. Nyanjiru stood only a few feet away from the guards, who had been on duty for 18 continuous hours. The guards kneeled and engaged their rifles at the command of the superintendent of police, Captain Carey.
In the end, 200 Kenyans died. Thuku was exiled, first to Kismayu, then to Marsabit, Witu and Lamu. But as Bryan Ngartia observed in The Ageless Defiance of Muthoni Nyanjiru, “the sacrifice wasn’t all in futility. The tax was reduced from 16 shillings to 12 shillings and was never again raised for the sole purpose of filling labour needs. African grievances were given serious consideration.” This was the seed of struggle that matured in the later independence of Kenya.
Where Are Those Songs? Micere Githae Mugo pleads with our mothers today:
Where are those songs / my mother and yours / always sang / fitting rhythms / to the whole / vast span of life/? […] Sing Daughter sing […] sing/simple songs/for the people/for all to hear/and learn/and sing/with you.
In 1992, Prof. Maathai led mothers of political prisoners detained by the Moi regime to occupy Freedom Corner in Nairobi’s Uhuru Park. The government, in now familiar style, dispatched armed police to evict the women, who stripped naked in protest and defiance. Prof. Maathai was beaten unconscious and hospitalised, but the women of Freedom Corner eventually won. Prof. Maathai and her group of women also stopped President Daniel Toroitich arap Moi – at the zenith of his power – from building what would have been Times Tower, a complex associated with the ruling party, at Uhuru Park.
Women must wade in the waters and refuse to be silenced; they must fight for their children’s future. In her contribution published in The Inquiry in 2013, titled “Silence is a Woman”, Wambui wa Mwangi opposed the exclusionary, false, Gikuyu-centric narrative and ideological erasure of many other ethnic communities in the Kenyan story as told by Gikuyu men. She stresses: “Here, I also want to insist on the strong tradition within Gikuyu women’s culture of resisting tyranny, oppression, domination, and hubristic upumbafuness by the men.” Wambui is right to point us to the fact that authoritarianism has no ethnicity. We all sink under bad leadership.
Wambui is right to point us to the fact that authoritarianism has no ethnicity. We all sink under bad leadership.
In shorthand, the song “wade in the waters” admonished the community not to be like the paralysed man, who seemed unable to seize the opportunity and betrayed to the authorities the one who saved him. The song pairs those who made it to safety with the victims who fell trying. For those who made it through: who that dressed in blue?
And in the description of baptism, a hinted memory of those lost in the middle passage:
Chilled body but not my soul…
We remember that their sacrifices have given us our freedom, made the rule of law possible and set us on the path of prosperity.
I am suggesting that in today’s situation, we all should mount powerful public protest despite our party affiliation or policy position. Our demand should be: The rule of law as a threshold in Kenyan politics. Any party that endangers this value must disqualify itself. We must insist on unadulterated implementation of Chapter 6 of the Constitution of Kenya 2010. Period. Then, perhaps, we too would be wading in the waters.
Going forward, it is likely that public protest will be dealt with ruthlessly and may even be fatal for some, but there is gain for all that we strive for. In the face of brutality against dreams, let us consider the story of Joseph in the Bible. The brothers said, ” Come, let us kill him and throw him into one of these wells…Then we’ll see what comes of his dreams.” (Gen. 37:20) Here the irony could not be more explicit. The very act intended to frustrate dreams by killing the dreamer becomes the beginning of a sequence of events that make the dreams come true. Joseph went on a winding journey from slavery, to Potiphar’s house, to prison and finally to leadership in Egypt.
Let us demand the dreams of our children.
Carl Rosberg and John Nottingham, 1966: The Myth of ‘Mau Mau’: nationalism in Kenya. New York: Praeger.
Ngugi wa Thiong’o, 2012: A Grain of Wheat. Penguin African Writers Series, New York: USA.
Schaeffer, Francis A., 1976: How Should We Then Live? The rise and decline of Western thought. Crossway books Wheaton IL. USA
Singh, Makhan, 1969: History of Kenya’s Trade Union Movement to 1952. Nairobi: East Africa African Publishing House.
Wipper, Audrey, 1989: “Kikuyu Women and the Harry Thuku Disturbances: Some Uniformities of Female Militancy, Africa: Journal of the International African Institute, 59.3: 300–337
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