Confronted on his excesses, abuses and disregard of rights of the people of France, Louis XVI responded, “L etat c’est moi”, “I am the State”. That was in 1715. Louis was tried by the people and executed. Four centuries later, Zaire’s Mobutu Seseko repeated Louis’ “royal liturgy” to a French journalist. Mobutu went further; he pronounced himself God. Mobutu fled and died in exile.
Entitlement is a malaise that afflicts absolute rulers. It thrives where law is what the ruler decrees it is; not the people, through their Courts. Where the peoples’ sovereign franchise prevails, and truth, justice and the rule of law governs the affairs of man, there is tranquility.
World attention today focuses on the Supreme Court of Kenya. The Court will, for the second time in a row, hear and rule on whether President Uhuru Kenyatta was validly elected for a second term. Just as in 2013, the suitor is former Prime Minister Raila Amolo Odinga. Raila says he has “given the Court a second chance to redeem itself.”
On 13th August, Raila protested the declaration of Uhuru as winner, accusing the Independent Electoral and Boundaries Commission (IEBC) of subverting the will of the people, not once, but for the third consecutive time and substituting it with the dictate of a minority ruling elite.
Having initially vowed not to contest it in Court, but rather through other means, he claims that a crackdown on human rights organizations expected to do that necessitated the change of tact.
What is Raila’s case? How did Kenya end up here? Is there cause for concern or alarm on the Court? Will the Court decide otherwise than before and with what consequences?
The petition claims that “the Presidential Election was so badly conducted and marred with irregularities that it does not matter who won or was declared as the winner of the Presidential Election…Instead of giving effect to the sovereign will of the Kenyan people, the IEBC delivered preconceived and predetermined computer generated leaders.”
The IEBC is accused of interfering with the Kenya Integrated Elections Management System (KIEMS) and unilaterally disbanding the Elections Technology Advisory Committee (ETAC).
Whereas people voted, the IEBC did not count and tally the results. It adopted Joseph Stalin’s principle, “It is enough that the people know there was an election. The people who cast the votes decide nothing. The people who count the votes decide everything.”
Evidence in support of the case is contained in a voluminous record of over 25,000 pages. The evidence supports 12 main issues.
The IEBC is accused of interfering with the Kenya Integrated Elections Management System (KIEMS) and unilaterally disbanding the Elections Technology Advisory Committee (ETAC).
KIEMS is a single unit electronic platform. It was intended to ensure that voters are biometrically identified, and polling results transmitted and declared in a simple, accurate, verifiable, secure, accountable and transparent manner. These tenets of a free and fair election are anchored in the Constitution and the 2017 amendments to the Elections Act.
It is alleged that the IEBC had, through a proxy, sought to declare unconstitutional the law that requires biometric voter identification and electronic transmission of results from polling stations to the Constituency Tallying Center and the National Tallying Center. The case was filed by a third party against the IEBC but through a lawyer who is on the advisory panel of the IEBC.
Though not determined at the time of the elections, Raila believes that the case was filed with the connivance of the IEBC to sabotage the integrated, electronic electoral management system. He claims that the manipulation of the system resulted in a permanent pre-set 11% margin between him and Uhuru. It is Raila’s position that the outcome of the case would, as did the manipulation of the system, countermand the requirement for finality of results declared at 290 Constituencies established under the Constitution.
The finality of Constituency results was affirmed by the Court of Appeal. It would remove the risk of rigging at the National Tallying Center as recommended by Judge Johann Kriegler in his report following the disputed 2007 elections.
The ETAC’s function was to advise on adoption and implementation of election technology. It entailed the participation of stakeholders, in this case, candidates and political parties in the elections. In a Judgement made on 15th June, 2017, the High Court held that the requirement for a professional audit of the voter register 6 months before the election was overtaken by events. The Court further declared unconstitutional, the law establishing ETAC.
It is Raila’s complaint that being a stakeholder he ought to have been notified of the proceedings leading to the disbandment of the ETAC and that the IEBC intentionally failed to defend the case properly. As a result, the disbandment compromised the transparency of IEBC’s preparation for the elections. The IEBC then monopolized the management of the electronic voter system to the exclusion of other players. This, it is claimed, enabled manipulation in the transmission of results that could not be independently verified.
The IEBC is also accused of intentionally supplementing its server on a private cloud. The decision was made contrary to advice from the Communications Authority of Kenya. KIEMS became vulnerable to intrusion and manipulation.
Raila claims that 2 days to the elections, the IEBC designated 11,000 polling stations outside 3-4 G network coverage. There was not sufficient notice or time for Raila to appoint his agents in those stations. Results from those stations account for over 7.7 million votes and cannot be verified in the manner prescribed by law and intended by KIEMS.
The IEBC is also accused of intentionally supplementing its server on a private cloud. The decision was made contrary to advice from the Communications Authority of Kenya. KIEMS became vulnerable to intrusion and manipulation. The murder of IEBC’s ICT Manager Chris Msando a few days to the election is claimed to have been planned. His password or information obtained from him were used to infiltrate KIEMS, create and relay computer generated results.
Uhuru is accused of unduly influencing and inducing voters with 2007/2008 post-election reparation payments, hurriedly launched projects and advertisement of his administration’s achievements. He is said to have intimidated voters in his campaigns with military deployments and outright threats on public servants. A widely publicized incident in Makueni where Chiefs were threatened is cited. Uhuru is alleged to have used state resources and State Officers, in particular Cabinet Secretaries, to actively solicit for votes contrary to law.
Raila’s agents are also said to have been ejected from polling stations in Central Kenya and Rift Valley. It is claimed that they were replaced by those procured by Uhuru’s Jubilee Party. Massive manipulation of results is claimed to have ensued as a result.
KIEMS was designed to transmit results from polling stations to the Constituency and the National Tallying Centers simultaneously with electronic images of Forms 34As. It would also enable electronic transmission of final results from the Constituency level to the National Tallying Center. Form 34A is the official declaration at the polling stations whilst Form 34B is for the Constituency declaration.
However, provisional results are alleged to have been transmitted from polling stations to the National Tallying Center, bypassing the Constituency Tallying Centers. The results were not accompanied by Forms 34A and 34B. The results were said to be provisional, again, in disregard of the Court of Appeal decision. 10,000 stations with 5 million votes were affected. The complaint by Raila is that this was a precursor to the rigging of the election in favour of Uhuru.
Further, the petition claims that scrutiny of spoilt and rejected votes would reveal that nearly 400,000 votes were deducted from Raila and added to Uhuru. It is alleged that the manipulation and doctoring of Forms 34A and 34B means another 7 million votes cannot be authenticated.
Raila states that the declaration of a winner was made prematurely in the absence of 11,883 supporting Forms 34A and 187 Forms 34B. 3.5 million votes are affected. He also wants the Supreme Court to go against the precedent it set in 2013 and have rejected votes, this time numbering 477,196 or 2.6% of votes cast, considered when ascertaining whether the Constitutional threshold of 50% plus 1 has been crossed.
The great trek
Kenya gained internal self-rule and political independence from the then British Empire 5 decades ago. The Union Jack quickly came down. The Kenyan flag was hoisted. Jomo Kenyatta was appointed Prime Minister by the colonial Governor-General and one year later declared President by parliament. The Lancaster Constitution did not provide a term limit for the Presidency. The leader of the dominant political party was appointed President by acclamation in periodic parliamentary elections, whose occurrence he controlled. Kenyatta being the leader of the Kenya National African National Union (KANU) party would rule for life, for 15 years. Kenyatta was succeeded by Daniel Arap Moi. Moi ruled for 24 years; 14 for life and 10 on a 5 year term.
In 2013, Raila challenged the election of Uhuru. The Supreme Court jettisoned all evidence before it. It then proceeded to dismiss the Petition, in reliance upon decisions from Nigeria, Gabon and Uganda.
The British had an elaborate law for periodic election of their Prime Minister back at home. They saw no need for the same in Kenya, or any of their former colonies which did not have established political systems in place. With the exception of India, which embraced democratic rule at inception, former British colonies suffered absolute leadership until after the collapse of the Soviet Union and the second liberation in the 1990s.
In the intervening period, a change in government in the Commonwealth was effected in two ways only; a coup or the natural or unnatural death of the President. Determinations by Courts on the legitimacy of the regimes were unheard of.
In Uganda, Judges declared unconstitutional the government of Idi Amin upon the overthrow of Milton Obote. They were killed on the same day. Whitehall often supported similar governments in the entire Commonwealth. Without periodic elections, there was no precedent for a Presidential Election Petition.
The clamor for change saw to the re-introduction of multi-party politics in 1992. Moi won the Presidential Election despite a determined opposition wave. A Petition by Kenneth Matiba was dismissed by the High Court and Court of Appeal without a hearing. The requirement for personal service upon Moi and signature of the Petition by Matiba, who could not because he was ill, were technical considerations relied upon by the Courts. A petition by Mwai Kibaki upon Moi’s re-election in 1997 suffered the same fate. The Courts had no semblance of independence. The President controlled the Courts. A Petition against his election was doomed to fail.
The 2003 election of Kibaki was not challenged in Court; it was not even disputed. Kibaki had defeated Uhuru with a landslide victory. Uhuru had largely been viewed as Moi’s project. The people had resolved to overrule Moi’s prophesy that the independence party, KANU, would rule Kenya for 100 years.
Kibaki’s re-election in 2007 was highly disputed. It is widely believed to have been stolen from Raila. Raila did not go to the Courts as they were controlled by the President. The post-election violence that ensued resulted in the unhappy marriage between Kibaki and Raila. One outstanding achievement of the Grand Coalition Government was the promulgation of the 2010 Constitution. An elaborate process for the period election of the President and determination of a dispute arising from the election was put in place. The Supreme Court was created specifically for this function, with a minimum of 5 and maximum of 7 Judges as quorum.
In the aftermath, radical changes in the Judiciary sent packing Court of Appeal Judges who presided over the Petitions by Matiba and Kibaki. This was a pointer to the Supreme Court that the issue of election of the President was not that simplistic and legalistic. It is one that must be considered on the wider public interest, to uphold the popular will of the people and the Constitution.
In 2013, Raila challenged the election of Uhuru. The Supreme Court jettisoned all evidence before it. It then proceeded to dismiss the Petition, in reliance upon decisions from Nigeria, Gabon and Uganda. These countries, unlike Kenya, had experienced the full brunt of authoritarian military rule. Their Courts could not be objective. In fact, this was the first time a Kenyan Court took refuge in decisions from such countries.
The 2013 decision set an unreasonably high standard and burden of proof. It was not different from Matiba and Kibaki earlier decisions. The legal fraternity in Kenya and worldwide has condemned, trashed and shelved it as bad law. The Supreme Court could be forgiven for arriving at the decision since the Constitution was nascent and barely 2 years old. The Court itself was only a year old. Though composed of highly learned minds, three of the Judges, including the President of the Court, were in their novitiate, having been appointed from outside of the Judiciary and with limited or no courtroom experience at all. This was their first election petition they were handling and were confounded by the magnitude of the exercise and perhaps scared of the consequences of their decision. They may have played safe and sacrificed truth, justice and the law.
This was their first election petition they were handling and were confounded by the magnitude of the exercise and perhaps scared of the consequences of their decision. They may have played safe and sacrificed truth, justice and the law.
The Supreme Court’s image has since then been dented by credibility concerns. Unconcluded investigations for bribery involving one of the Supreme Court Judges demonstrated that the Court was susceptible to manipulation and compromise. It does not better the case when two Senior Counsel who accused the Judge, as well as an Advocate who was alleged to have conveyed the bribe as well as the Judge’s Advocate, a senior counsel, will act together for some of the parties in the current Petition.
That thwarted attempts by President Kenyatta to have a final say in the appointment of the Chief Justice, who is the President of the Court, publicly played out during the retirement case for two of its Judges, both matters again involving the three Senior Counsel cannot be overlooked. In his election campaigns in Kisii, Uhuru recently stated that he had appointed their son the Chief Justice. The Judicial Service Commission quickly refuted this claim and reiterated its independence from the Presidency. It was too little too late. The damage had already been done and aspersions cast. There is therefore, profound merit in Raila’s call for redemption.
Collective success or failure of the Court
The 2017 Petition will be decided in a polarized setting. Both parties are on record, attacking the judiciary whenever a decision goes against them. Several Judges of the High Court and Court of Appeal recused themselves from pre-election cases. They did so out of fear or to escape the badge of bias.
A bench to hear the case by Raila’s coalition, seeking that the election be conducted solely on an electronic basis, the IEBC having failed to make regulations for a manual back was constituted of Judges outside the Constitutional Division of the High Court. The Presiding Judge, Odunga had been accused by Jubilee Party of being compromised to rule in favour of the opposition. The Judge and his other two colleagues in the Division would not feature in subsequent benches set up by the Chief Justice. At the Court of Appeal, three Judges recused themselves on account of their handling of previous electoral cases, real or perceived relations with some of the Advocates or the parties. The outcome is the same. It is an indicator that Courts could still be subject to accusations of manipulation from litigants.
The Supreme Court suffers a numerical disadvantage. It has 7 Judges, all of whom may sit, going by the precedent of 2013. Whereas 5 Judges constitute quorum, it is unlikely that the earlier precedent will be departed from. None can be recused on account of bias, compromise, relations or affiliations with the parties or their advocates. It is, however, troubling that most of these Judges share Advocates with the parties appearing in the petition. It is very untidy. Suspicions of possible bias and compromise cannot be dismissed. This calls for extra caution and vigilance.
There is a popular view that the Judges should declare their interests if any and possible conflict. The Judges should write their individual decisions. Indeed, that is the practice in the Commonwealth. It was the practice adopted by the Court of Appeal until recently, when it appears to have been abandoned. The only way to ensure judicial fidelity and interrogate judges’ Jurisprudential Quotient, is to test their individual decision-making abilities. They should not hide in the cocoon of collective success or failure. This conduct amounts to judicial laziness.
Repeat performance or improvement?
Approval and dismissal of merits of the petition is as varied as is the public support for Raila and Uhuru. Raila’s side perceive a strong case, better than the first one. Uhuru’s team consider the case much weaker. Viewed objectively, it is a case of desire for justice on the part of Raila and one of a sure win on the part of Uhuru. This is likely to play out in Court.
The 2017 Petition will be decided in a polarized setting. Both parties are on record, attacking the judiciary whenever a decision goes against them.
The only difference between a Presidential Election Petition and a National Assembly Election Petition is the volume. A Presidential Election is held in all 290 Constituencies. Intriguingly, the Petition must be heard and determined in 14 days. The other Petitions are heard and determined within 6 months.
The Supreme Court does not have the luxury of the High Court. It cannot recount, scrutinize and audit results from all 290 Constituencies. A decision must be based on pillars of “a free and a fair election”. International and national public policy must play a role also. The Supreme Court is empowered to depart from its previous decisions depending on the circumstances of the case or change in public policy. It is a delicate balance, but one that can be attained with a National Assembly Election Petition as a simulator.
Interference with KIEMS to transmit and project provisional results or to generate results contravened the Constitution. Such action would have gone against the decision of the Court of Appeal, in respect to the finality of results declared at the Constituency Tally Center. Publication of achievements, use of state resources and threats by a party to an election are election offences. Some of the State Officers are being investigated for possible prosecution. Uhuru’s election could be nullified on account of the election offences by his administration.
Massive inconsistencies and discrepancies of results in Forms 34A and 34B and in the IEBC portal could be indicative of manipulation towards a flawed electoral process. The 5 to 7 million votes claimed to have been affected is such a huge number that cannot be ignored. This limb of the case may be very strong on the fidelity of the electoral process. The demanded forensic examination of IEBC’s server and portal would establish whether there is a case. It remains to be seen how the Court will undertake a detailed examination of evidence within 14 days and order scrutiny and recount of votes to verify the numbers. If it does, the truth or falsity of Raila’s claim will unfold. The hasty announcement of the winner without the benefit of Forms 34B and before the completion of the tally, affecting over 3.5 million votes is a grave violation. The case seems to be strong on this limb.
The Supreme Court is not handicapped on precedent in the decision to be made. Resort to decisions from other countries alone is unnecessary. There are many locally decided cases that may be of guidance to the Court. Being a Court of law as well as public policy, numerous cases, not necessarily in respect to Presidential Election Petitions are available internationally and locally.
For example, the election of the Member of Parliament for Juja Constituency was challenged in the disputed 2007 General Election. The declared winner was the Chief Government whip for Kibaki’s wing in the Grand Coalition Government. Malpractices in the election mirrored those leveled against the election of Kibaki. The then Electoral Commission of Kenya was accused of subverting the popular will of the people and replacing it with a pre-determined choice of the ruling elite. The inconsistencies and manipulation of the declaration of results was so monumental that the election could not be sanitized by either a scrutiny or recount of the votes. The entire process was flawed. The election was therefore annulled.
The High Court pronounced itself thus; “One may ask why courts should hold an electoral body to a high standard in the performance of its duties. I think if there is any statutory body whose actions should be considered to be above the board and which should perform its duties to the required standard of integrity and probity, it should be the electoral commission. The electoral commission has a duty to inculcate and imbue confidence in the electorate that its process is transparent, free and fair.” Raila’s claim of manipulation of the entire electoral process would be based on principles set out in this decision. If the process is flawed, numbers or margin of difference between two candidates does not matter. The election may be invalidated without the need for scrutiny or recount of the votes.
Of the election petitions subsequent to the 2013 elections that of Mathare Constituency attained distinction, in electoral law. The winner was from Raila’s Orange Democratic Movement. The loser, from Uhuru’s The National Alliance had been awarded the certificate. The High Court dismissed the petition. It held that results declared at the Constituency are not final and may be altered by the Chairman of the IEBC.
When called upon to review the issue, the Court of Appeal affirmed the finality of the declaration at the Constituency as the will of the people. The Court of Appeal held that it could not declare the claimant winner and directed that fresh election be held.
The dispute found its way to the Supreme Court. The decision by the Court came fast, crisp and sharp; “Apart from the priority attaching to the political and constitutional scheme for the election of representatives in governance agencies, the weight of the people’s franchise-interest is far too substantial to permit one official, or a couple of them, including the Returning Officer, unilaterally to undo the voters’ verdict, without having the matter resolved according to law, by the judicial organ of State.” The case supports Raila’s plea on finality of results declared at the Constituency level and fidelity of the process attendant to the declaration. It also buttresses the position in law that the IEBC cannot subvert the popular will of the people and replace it with that of a ruling elite.
That the petitioners in the two cases referred to won the by-elections that followed goes a long way to demonstrate how the electoral process can be subverted to defeat justice.
The complaint of use of State Officers and resources for campaign is one that Uhuru will be hard put to defend. It is well documented and publicly known. There is evidence in the Petition that the entire Government machinery from top bottom was deployed to campaign for Uhuru with threats to those perceived to rally behind the opposition. These events were concentrated within the campaign period and cannot be said to have been part and parcel of normal Government administrative duties.
The Public Officer Ethics Act and the Election Offences Act prohibit State Officers from engaging in politics, yet these Officers actively campaigned for Uhuru and defended their actions as part of Government business. Prohibited also is the advertisement of achievements for political gain. Raila has a strong case on this ground, supported by precedent.
The election of Moses Wetang’ula as Senator for Bungoma in 2013 was invalidated by the High Court. The decision was upheld by the Court of Appeal and the Supreme Court. The Courts found that the offences of bribery and voter treating had been proved and were sufficient to warrant the annulment of the election. In the words of the Supreme Court, “Moreover, we take judicial notice of the centrality of elections in the functioning of established governance bodies, as signaled by the Constitution in both general and specific terms. On that principle alone, a party found on fact to have befouled the electoral process, cannot maintain an argument that his or her offence may not be declared, save alongside that of other parties.” If Raila convinces the Court that Uhuru breached the law on the campaign trail, the Court could invalidate the election on the basis of this decision.
If Raila convinces the Court that Uhuru breached the law on the campaign trail, the Court could invalidate the election on the basis of this decision.
The case by Raila will have to be examined on the basis of these principles. If established, the Supreme Court would order a fresh election. The case could be dismissed if the evidence does not support the complaints before the Court.
The Austrian Court overturned results of election in which Alexander Van der Bellen narrowly beat far-right candidate Norbert Hofer for electoral malpractice. A South Korean court removed the President from office for abuse of office. The Brazilian senate impeached Brazilian President Dilma Rousseff for illegally manipulating government accounts. The Pakistan Supreme Court stripped the Prime Minister of his office, for corruption. Here in Kenya, former Deputy Chief Justice Nancy Baraza was removed from office for misbehaviour for merely pinching the nose of a security guard. The bar on integrity has been set high locally and internationally. The Court may be persuaded to use these out of court processes in arriving at a decision.
A majority of Kenyans feel that a minority ruling elite has since independence, acting through unlawful means, denied other regional and ethnic communities the legitimate opportunity to rule. That feeling may prevail, irrespective of whatever legally acceptable or meritorious outcome is to be made by the Court. It may be high time that a rotational presidency, on the basis of the 8 main regions or provinces Kenya was demarcated and administered from independence, is considered, if the law of winner takes it all will forever be used or abused.
The Supreme Court has many references for direction in determining whether the popular will of the people of Kenya was ousted. Its decision must be based, not only upon evidence and the law, but international and national public policy. “Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws”, said Plato. The Court must ensure that leaders act responsibly, without circumventing the law.
The War on Corruption: What Singapore Got Right
15 min read. Singapore’s success in minimising corruption can be attributed to its dual strategy of reducing both the opportunities and incentives for corruption, while Kenya’s failure to eliminate graft is the result of a half-hearted anti-corruption crusade that is politically weaponised and applied selectively.
Experts on the study of corruption distinguish between political corruption and bureaucratic corruption. Political corruption involves vote-rigging, registration of unqualified voters, falsification of voter registers and election results, selling and buying of votes, and wiretapping the phones of political opponents. All this is aimed at helping politicians capture and/or maintain political power. With particular reference to Kenya, political corruption also involves instigation of “ethnic” violence in opposition regions by incumbent political parties in order to scatter voters and minimise their turnout on election day.
Bureaucratic corruption, on the other hand, is used by political leaders and civil servants – the bureaucrats – to extract extralegal incomes for themselves, their relatives, and associates. This involves extraction of bribes and rents in the distribution of public goods and services, theft of public resources, embezzlement of funds from state coffers, nepotism, and the granting of patronage to cronies and relatives, illegal taxation by bureaucrats with benefits accruing to them and their associates, capricious and selective enforcement of state laws and statutes in order to generate benefits for the bureaucrat, and differential treatment of private enterprises with the expectation of kickbacks from the favourably treated enterprises.
There are four categories of bureaucratic corruption in the literature on the subject, according to John Mukum Mbaku, an expert on the subject. The first is cost-reducing corruption, which involves actions by civil servants to reduce the regulation-induced costs of an enterprise below their normal rates. An example here is the illegal reduction of a private firm’s tax obligations to the government and exemption of a business from compliance with certain rules and regulations. In this way, a firm’s transaction costs are reduced and the finances thus saved are shared out between the bureaucrat and the firm owner.
The second type of corruption is cost-enhancing corruption. This occurs in situations where governments place controls on the prices of foodstuffs, which normally leads to hoarding and severe food shortages. Herein, civil servants who control government food stocks extract rents from potential consumers by charging them prices that approximate free market prices. Another way is the extraction of bribes by civil servants from entrepreneurs seeking for licences, including import/export, and investment licences. Yet another is where civil servants simply use the state’s coercive power at their disposal to appropriate private property for their own use, for instance through illegal taxation. In Kenya, the public procurement domain is the arena in which cost-enhancing corruption has been most pervasive. This is the situation in which public officials extract rents from their control of the public procurement process. They do so by demanding kickbacks from tender awardees and by inflating the same and skimming off the excess.
The third type of corruption is benefit-enhancing corruption. Herein civil servants may permit more public benefits such as bursary funds to public schools, or development resources to a particular region, to accrue to an individual or group than is legally permitted. Recipients of such benefits then share them with the bureaucrat on the basis of a prearranged formula. This type of corruption is quite pervasive in Africa and many other developing societies because it is relatively easy to execute and not so easy to detect.
The fourth and final type of corruption is benefit-reducing corruption. This is where bureaucrats simply appropriate for their own private use public benefits that are intended for other private citizens. One example of this is a civil servant manager of a pension fund who can delay the transmission of retirement benefits to pensioners, deposit such funds in a high interest-earning bank account, and subsequently skim off the accrued earnings. This type of corruption is also very easy to undertake because of information asymmetries in much of Africa and elsewhere, with bureaucrats having more information about public benefits programmes than the ordinary citizens. In Kenya, the problem of employers, especially in the private sector and within state corporations, making statutory deductions from employees, such as pensions, health insurance, and income tax, which never reach their legitimate destinations is a perennial one.
The evolution of corruption in Kenya
The fact that corruption in Kenya has reached epidemic proportions is beyond question. In the 1960s and 1970s, bureaucratic corruption manifested itself in bureaucrats’ demands for kickbacks valued at around 10 per cent of the total cost of a public tender, development project, or whatever goods or services were under procurement. By the 1980s and 1990s, the rates had escalated to around 40 per cent. In the current dispensation in Kenya, the rates have maxed out to 100 per cent! This is the situation where, for instance, a development project is conjured up, it is costed, awarded, and paid for, but nothing is done. The exemplification of this is the Kimwarer and Arror dams project scandal in which billions were paid out for nothing. Alternatively, public funds are simply withdrawn from bank accounts and directly pocketed by public officers, a most brazen form of corruption that was amplified by the investigative report on the financial shenanigans at Maasai Mara University.
In view of the pandemic levels corruption has reached in Kenya, a national conference on corruption was convened in January 2019 at the Bomas of Kenya. At the conference, President Uhuru Kenyatta asserted that the government would relentlessly pursue high profile cases already in the courts and launch a crackdown to ensure all corrupt persons are held accountable.
“For the first time,” the President reiterated, “no person is beyond the reach of the long arm of the law no matter how powerful or influential they may perceive themselves to be.” He further revealed that all branches of government were working collaboratively to eliminate the vice. Since then, a big show has been made of demolishing properties constructed on road reserves, on riparian land, and on illegally-acquired public land. Finance Cabinet Secretary Henry Rotich and his Principal Secretary, Kamau Thugge, among others, were arrested and charged with eight counts of financial fraud. Additionally, four high county governors were arrested and charged with corruption. These include Samburu governor Moses Kasaine Lenolkulal, Busia governor Sospeter Odeke Ojaamong, Kiambu governor Ferdinand Ndung’u Waititu, and Nairobi Governor Mike Mbuvi Sonko.
In the 1960s and 1970s, bureaucratic corruption manifested itself in bureaucrats’ demands for kickbacks valued at around 10 per cent of the total cost of a public tender, development project, or whatever goods or services were under procurement. By the 1980s and 1990s, the rates had escalated to around 40 per cent. In the current dispensation in Kenya, the rates have maxed out to 100 per cent!
A lot of fuss has been made before about fighting corruption, right from the 1960s, yet the problem has only gotten worse over time. The question is, given the manner in which the war on corruption has been conducted in Kenya, can it be successful? What chance is there that the current war on corruption will be successful? What will it take to seriously reduce and eventually stamp out corruption in Kenya? Where did Kenya go wrong on matters corruption?
When the rain started beating Kenyans
To understand how Kenya went wrong on the corruption issue, one has to juxtapose it with Singapore. Both Kenya and Singapore were British colonies. Singapore gained independence in 1959 while Kenya gained independence in 1963. Both had the same bureaucratic institutional legacy from colonialism.
For four decades, Kenya’s politics was dominated by one party, the Kenya African National Union (KANU); similarly, the People’s Action Party has remained the ruling party in Singapore since independence. Yet whereas Singapore is consistently ranked the most corruption-free country in Asia and among the top ten cleanest in the world, Kenya is rated among the top corrupt countries in Africa and the world. What accounts for these two realities is squarely the difference between adherence to leadership integrity and good governance principles, and lack of adherence to the same.
When Jomo Kenyatta became Prime Minister of Kenya in 1963, delegations of goodwill trooped to his Gatundu home bearing gifts for him, which he enthusiastically accepted. The gift bearers sought to ensure favourable consideration of their future requests. Even before he was released from prison, efforts were made to make Kenyatta’s post-prison life comfortable: a house was constructed for him; and, as the late Jackson Angaine stated in an interview with The Nation, “I mobilised the Ameru to contribute towards buying a Mercedes Benz car for Mzee Kenyatta shortly before his release in 1961.” This laid the foundation for favouritism, nepotism, and misuse of public office to serve private interests. The foundation for the appropriation of public office for self-enrichment was thus laid by Kenya’s founding president, Jomo Kenyatta, and it has gotten worse with each successive president.
A couple of years after Kenya’s independence, when Bildad Kaggia teamed up with Oginga Odinga and a few other truly nationalist leaders to fight for the rights of the landless for social justice and equity, and for restructuring Kenya’s colonial economy to work for the ordinary citizens, President Jomo Kenyatta publicly ridiculed him for failing to amass the kind of wealth that his former fellow political prisoners at Kapenguria had amassed for themselves: “We were together with Paul Ngei in prison. If you go to Ngei’s home, he has planted a lot of coffee and other crops. What have you done for yourself? If you go to Kubai’s home, he has a big house and has a nice shamba. Kaggia, what have you done for yourself? We were together with Kung’u Karumba in jail now he is running his own buses. What have you done for yourself?” Jomo Kenyatta boomed at Kaggia in disgust for refusing to use his position and ethnicity to accumulate wealth instead of teaming up with Odinga to oppose the acquisitive behavior of the new elite.
A couple of years after Kenya’s independence, when Bildad Kaggia teamed up with Oginga Odinga and a few other truly nationalist leaders to fight for the rights of the landless for social justice and equity…President Jomo Kenyatta publicly ridiculed him for failing to amass the kind of wealth that his former fellow political prisoners at Kapenguria had amassed for themselves.
Kaggia’s response to this rebuke was emblematic of a true servant-leader with the highest sense of integrity and commitment to the general good. He calmly responded: “I was not elected to Parliament to acquire a large farm, a big house or a transport business. My constituents sleep in mud houses. They have no shambas and have no businesses. So, I am not ashamed to be associated with them. By the time they have these things, I will also be able to have them for myself.”
Unfortunately for Kenya, as elsewhere in Africa and even beyond, such leaders of integrity have been rare. Indeed, the few extant ones were, at best, systematically marginalised from the centres of power and, at worst, silenced through assassination. For instance, when Josiah Mwangi Kariuki (popularly known as JM) incisively critiqued the government and declared that the manner in which the state was being used in Kenya would lead to a Kenya of ten millionaires and ten million beggars, he was assassinated and his body dumped in Ngong forest.
What Singapore did right
Just like Kenya’s Kenyatta, when Lee Kuan Yew became the first Prime Minister of Singapore in June 1959, he received many gifts from well-wishers who, like their Kenyan counterparts, wanted to ensure favourable consideration for their future requests. However, Lee declined to accept these gifts in order to set an example for his political colleagues and all civil servants.
A former senior civil servant, Eddie Teo, revealed that public servants watched and followed the example of Lee and his colleagues and “were incorruptible because they were incorruptible”. Eddie Teo and his colleagues were “motivated by the exemplary conduct set by our bosses” because “they lived simple, frugal and unostentatious lives” and the anti-corruption law was applied to everyone, regardless of position, by Singapore’s Corrupt Practices Investigation Bureau (CPIB).
The country relies on two key laws to fight corruption: The Prevention of Corruption Act (PCA), and the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (CDSA). The PCA applies both to persons who give and those who receive bribes in both the public and private sectors. When applied, the CDSA confiscates ill-gotten gains from corrupt offenders, including direct benefits as well as profits made by individuals or companies from contracts awarded due to bribery. The two laws combine to make corruption a high-risk, low-reward activity in Singapore.
Furthermore, the Singapore Public Service is guided by a Code of Conduct, which sets out the high standards of behaviour expected of public officers based on principles of integrity, incorruptibility, and transparency. The Code of Conduct is enshrined in the Government Instruction Manual for public officers and provides that a public officer (a) cannot borrow money from any person who has official dealings with him; (b) cannot at any time have unsecured debts and liabilities that are more than three times his/her monthly salary; (c) cannot use any official information to further his/her private interest; (d) is required to declare his/her assets at his/her first appointment and do so annually thereafter; (e) cannot engage in trade or business or undertake any part-time employment without approval; and (f) cannot receive entertainment or presents in any form from members of the public.
In a nutshell, unlike Kenya, Singapore resolved from the very beginning to fight corruption as a matter of strategic imperative to ensure the rule of law, sustain a healthy state of governance, and facilitate economic and social development. Right from independence, the founding political leaders saw it as their onerous task to set good examples for public officers. They created, by personal example, a climate of honesty and integrity, and made it patently clear to public officers that corruption in any form would not be tolerated.
Perhaps the best exemplification of Singapore’s zero tolerance of corruption is the fact that the anti-corruption law is applied to everyone equally, including top government and ruling party officials. Among top political leaders that have been prosecuted include the Minister for National Development, Tan Kia Gan, in 1966; the Minister of State, Wee Toon Boon, in 1975; the Member of Parliament and trade union leader, Phey Yew Kok, in 1979; and the Minister for National Development, Teh Cheang Wan, in 1986. The case of MP and trade union leader Phey Yew Kok is particularly illustrative of Singapore’s unrelenting commitment to zero tolerance of corruption. Kok was charged with misappropriating $100,000 trade union funds in 1979. He, however, fled to exile. When, at age 81, he returned to Singapore in 2015 after 35 years abroad, his case was re-opened by the CPIB and he was prosecuted on 34 charges involving more than $450,000, almost five times the original $100,000 he was accused of stealing from trade union funds in 1979. Kok pleaded guilty and was sentenced to five years in jail.
In a nutshell, unlike Kenya, Singapore resolved from the very beginning to fight corruption as a matter of strategic imperative to ensure the rule of law, sustain a healthy state of governance, and facilitate economic and social development. Right from independence, the founding political leaders saw it as their onerous task to set good examples for public officers.
Available evidence strongly indicates that the most important difference between a corrupt and corrupt-free state is the quality of their governance. A country’s incidence of corruption is related to its quality of governance. Multiple studies conclude that countries with high corruption have a low quality of governance, those with medium corruption have fair governance, and those with low corruption have good governance.
Singapore has minimised corruption because of the People’s Action Party (PAP) government’s strong political will and the provision of adequate personnel, budget and operational independence to enable the CPIB to enforce the Prevention of Corruption Act (PCA) impartially, regardless of an offender’s status, position, or political affiliation. Corruption offenders in Singapore are punished according to the law, without their jail sentences being suspended, or without being pardoned by the president. Consequently, corruption is perceived as a high risk, low reward activity in Singapore today because those persons convicted of corruption offences are punished according to the law.
As early as 1996, Singapore was ranked first among the 12 Asian countries in the Hong Kong-based Political and Economic Risk Consultancy’s (PERC) corruption survey. The PERC attributed Singapore’s top ranking to its strict and consistent enforcement of anti-corruption laws as corrupt officials, particularly high-ranking ones, are dealt with in Singapore with a severity rarely seen elsewhere. The country consistently ranks among the least corrupt in Transparency International’s annual Corruption Perception Indices.
Lessons from Singapore
A number of lessons can be extracted from the Singaporean experience. The first, and perhaps the most critical one, is the importance of political will in the fight against corruption. For the war to succeed, a country’s political leadership must be sincerely committed to the eradication of corruption. They must demonstrate exemplary conduct, adopt a modest lifestyle, and eschew indulging in corruption themselves. Anyone found guilty of corruption must be punished, regardless of his or her position or status in society. If the big fish are protected from being prosecuted for corruption, and only the small fish are caught or prosecuted, as is the case in Kenya, the anti-corruption strategy will lack credibility and is unlikely to make any difference.
The second lesson from Singapore is that to effectively combat corruption, incremental measures won’t suffice. Instead, comprehensive anti-corruption measures must be employed. These include comprehensive anti-corruption laws and a non-corrupt and autonomous anti-corruption agency. The anti-corruption legislation must be comprehensive enough to prevent loopholes and must be periodically reviewed to introduce relevant amendments whenever required.
The third lesson is that the anti-corruption agency must itself be incorruptible. To ensure this, it must be controlled or supervised by an incorruptible leader. The agency must be staffed by honest and competent personnel. Overstaffing should be avoided and any staff member found guilty of corruption must be punished and dismissed from the civil service.
The fourth lesson from the Singaporean experience is that to reduce the opportunities for corruption in those government departments that are vulnerable to corrupt activities, such as customs, immigration, internal revenue, and traffic police, such departments should review their procedures periodically in order to reduce the opportunities for corruption.
The fifth lesson that the Singaporean experience teaches us is that the incentive for corruption among civil servants and political leaders can be reduced by ensuring that their salaries and fringe benefits are competitive with the private sector. The long-term consequences of low civil service salaries are unfavourable as talented civil servants will leave to join private companies for higher pay, while the less capable will remain and succumb to corruption to supplement their low salaries. However, governments might not be able to increase salaries unless there is economic growth and adequate financial resources. The basis for making civil service salaries competitive with the private sector is thus good governance and effective economic management that ensure sustained economic growth and development.
In short, Singapore’s success in minimising corruption can be attributed to its dual strategy of reducing both the opportunities and incentives for corruption. Indeed, Singapore’s experience in curbing corruption demonstrates that it is possible to minimise corruption if there is strong political will. Needless to say, the situation becomes hopeless if such political will is lacking, when political leaders and senior civil servants pay only lip service to implementing anti-corruption strategies in their countries. Unfortunately, this has been the case in Kenya where the anti-corruption war has been waged half-heartedly, where low-level corrupt individuals are prosecuted while those who perpetrate grand corruption are celebrated and cleared to run for top political offices, and where even the half-hearted war is politically weaponised and applied selectively. It is thus no wonder that the scourge of corruption continues to grow in Kenya and constitutes perhaps the single most lethal threat to the future of the state.
Other successful strategies
Beyond the momentous experience of Singapore, evidence from elsewhere, such as the Doing Business Indicators, demonstrates that there is a high correlation between the incidence of corruption and the extent of bureaucratic red tape. This suggests the imperative need for cutting bureaucratic red tape by eliminating needless regulations while safeguarding the essential regulatory functions of the state. Some of the regulations on the books of many countries, such as those related to starting a new business, registering property, engaging in international trade, and a myriad other certifications and licences, are sometimes not only extremely burdensome but governments hardly ever pause to examine whether the purposes for which they were introduced are still relevant to the needs of the present. Such are the regulations that induce corruption and most simply need to be done away with.
Second, experience from elsewhere indicates that creating transparency and openness in government spending is another great strategy for minimising corruption. Subsidies, tax exemptions, public procurement of goods and services, soft credits, and extrabudgetary funds under the control of politicians constitute the various ways in which a government manages public resources. Governments collect taxes, tap the capital markets to raise money, receive foreign aid and develop mechanisms to allocate these resources to satisfy multiple needs. Some countries do this in ways that are relatively transparent and make efforts to ensure that resources will be used in the public interest. The more open and transparent the process, the less the opportunities for malfeasance and abuse. This calls for high levels of citizen literacy, and an active civil society with a culture of participation. A good example here is New Zealand, which remains consistently one of the top performers in Transparency International’s Corruption Perception Index. New Zealand is a pioneer in creating transparent budget processes, having approved in 1994 the Fiscal Responsibility Act that provides a legal framework for transparent management of public resources.
Beyond the momentous experience of Singapore, evidence from elsewhere…demonstrates that there is a high correlation between the incidence of corruption and the extent of bureaucratic red tape. This suggests the imperative need for cutting bureaucratic red tape by eliminating needless regulations while safeguarding the essential regulatory functions of the state.
A third strategy recommended by experts, and which is based on the Singapore experience, involves deploying smart technology. As already noted above, one of the most fertile sources of corruption in the world is the purchasing activities of the state. Purchases of goods and services by the state can be sizeable in most countries – somewhere between 5 and 10 per cent of gross domestic product. Since the awarding of contracts involves a measure of bureaucratic discretion, and given that most countries have long histories of graft, kickbacks, and collusion in public procurement, an increasing number of countries have opted for procedures that guarantee adequate levels of openness, competition, a level playing field for suppliers, and fairly clear bidding procedures.
Singapore has achieved this by streamlining cumbersome administrative procedures and slashing red tape to provide an efficient and transparent civil service so that no one needs to bribe civil servants to get things done. A national ICT masterplan was set up in the 1980s, which is updated regularly to enable the government to exploit technology to benefit the country and to spur economic growth. Through this, the government implemented e-services to enhance the accessibility and convenience of government services. Now thousands of government services are transacted online by Singaporeans in the comfort of their homes. With regard to public procurement, Singapore installed GeBIZ, an online procurement portal because of which, today, all government procurement is done online. The procurement specifications are posted online and are available to all prospective contractors, both national and international. Transparency and efficiency are enhanced, and opportunities for abuse and corruption are drastically reduced.
A third strategy recommended by experts, and which is based on the Singapore experience, involves deploying smart technology. As already noted above, one of the most fertile sources of corruption in the world is the purchasing activities of the state.
Chile is another country that has deployed the latest technologies to create one of the world’s most transparent public procurement systems in the world. ChileCompra was launched in 2003, and is a public electronic system for purchasing and hiring based on an Internet platform. It has earned a worldwide reputation for excellence, transparency, and efficiency. It serves companies, public organisations as well as individual citizens, and is by far the largest business-to-business site in the country, involving 850 purchasing organisations. In 2012 users completed 2.1 million purchases issuing invoices totaling US$9.1 billion. It has also been a catalyst for the use of the Internet throughout the country.
In many of the measures discussed above, the underlying philosophy is one of eliminating the opportunity for corruption by changing incentives, by closing loopholes and eliminating misconceived rules that encourage corrupt behaviour.
But an approach that focuses solely on changing the rules and the incentives, accompanied by appropriately harsh punishment for violation of the rules, is likely to be far more effective if it is also supported by efforts to buttress the moral and ethical foundation of human behaviour. For the anti-corruption war to succeed, the Singapore example illustrates that it requires unrelenting political will on the part of the top political leadership and it must be waged comprehensively and without fear or favour. Otherwise, the manner in which the war against corruption has been conducted in Kenya amounts to mere window dressing; it is emblematic of the proverbial preaching of water while simultaneously partaking of wine.
‘Secular’ Vs ‘Religious’ Violence: When Is Terrorism Not Terrorism?
5 min read. The rigid distinction between “the tolerant secularist” versus the “barbaric religious fundamentalist” in today’s discourse on the global War on Terror has been employed to justify the extreme measures taken against so-called Islamic terrorist groups.
In the past few decades, Islam has been on the spot in connection with violence due to the surge in armed groups that justify their actions using the religion. Examples abound: Al-Qaeda and the Islamic State in Iraq and Syria (IS) have claimed to want to unite all Muslims under one caliphate, liberate them from a Christian-Jewish conspiracy, and free Muslim countries from foreign influence. Similarly, Al Shabaab has an ambition to regain Somalia’s lost territories and establish a Muslim state that is free from foreign influence.
Such claims and the fear that these alarmist statements ignite have not only won these violent groups new recruits but have also led to the tightening of counterterrorism efforts. President Donald Trump, for example, calls Islamist groups and their violent actions “radical Islamic terrorists/terrorism”. However, after the New Zealand mosque massacre last year that left 49 people dead, he referred to the atrocity as “an act of hate”. Notable is his failure to differentiate between “Islamic” and “Islamist” and how quick he is to draw the link between Islam, Al-Qaeda and Daesh (ISIS). The latter have been labeled terrorist groups even though there has been a spike in white nationalist violence/terrorism in parts of the United States.
Closer to home, Al Shabaab and its rhetoric has often received widespread publicity as an “Islamic’ terror group” – a label that immediately makes a connection between Islam and violence. There have been recent calls by the Government of Kenya for the United Nations Security Council to officially classify Al Shabaab as terrorist group. Yet the Lord’s Resistance Army (LRA), despite claiming that its actions are inspired by Christianity, has not been labeled a “Christian terrorist group”.
“Secular” versus “Islamic” terrorism
The question is whether claims by Islamist groups such as Al Shabaab should be taken at face value. Al Shabaab has received widespread publicity in comparison to other “secular” armed groups largely because, together with other Islamist groups, it is seen as “religious”, “indiscriminate”, “brutish”, and “inflexible to negotiation” because it hates secular institutions, especially the Federal Government of Somalia (and its allies) and does not recognise “infidels”. If one uses Al Shabaab’s logic, a threat to Al Shabaab equals a threat to God.
However, one must recognise that for many years Somalis have not only experienced violence by Al Shabaab, but have also been victims of violence perpetrated by “secular” warlords. For example, in the period culminating in the fall of Siad Barre’s regime in 1991 and during the civil war in Somalia, such violence was propagated by, among other actors, the Alliance for the Restoration of Peace and Counter-Terrorism (ARPCT). ARPCT was an alliance of “secular” politicians comprising a band of warlords mainly from the Hawiye clan and their financiers. There are many other examples of violence by so called “secular” actors beyond Somalia that could be classified as state-perpetrated terrorism, including US drone attacks on Somalia that continue to this day.
Ironically, during that period, it was the rise of the Islamic Courts Union (ICU) that brought peace to Somalia for the first time since onset of the civil war. Back then, the ICU comprised, among other factions, so-called moderates and radical Islamists. Sheikh Sharif, who later, in 2009, would became president, led the moderates and adopted a liberal approach to politics that was opposed by the more radical faction. This radical faction would go on to form the Al Shabaab of today after sabotaging the unity and progress of the ICU and making more political demands. Al Shabaab gained more strength after the ICU was ousted from Mogadishu in 2006 by US-backed Ethiopian forces.
However, one must recognise that for many years Somalis have not only experienced violence by Al Shabaab, but have also been victims of violence perpetrated by “secular” warlords.
Al-Shabaab violence is often portrayed as a religious act of purification. Yet Al Shabaab’s attacks are non-discriminatory – Muslims and non-Muslims are targets, as are locals and foreigners. In Somalia, the targets have been government buildings, hotels, restaurants and schools where the majority of the casualties have been Somali Muslims. The most prominent recent example is the attack on a hotel in Kismaayo that killed the Somali-Canadian journalist Hodan Nalayeh and the attack in Mogadishu that killed the Mayor of Mogadishu, Abdulrahman Omar Osman, after a bomb was detonated inside the headquarters of Benadir district. Al Shabaab has made it clear that it targets the Government of Somalia and that those working to support it are a target, regardless of whether they are Muslim or not.
This is not to imply that religious institutions and individuals have not been targets of Al Shabaab. On the contrary, when this happens, it is more because the target was easy and the aim was to heighten the impact of the violence, thereby raising the profile of the group. It also often does so for political and economic motives as opposed to “religious” ones. For example, the 2013 Westgate Mall attack in Nairobi was claimed as a retribution against Kenya’s invasion of Somalia in 2011. The attack in Mpeketoni was targeted at Kikuyu Christians, while the one at Garissa University, which killed 148 students, targeted the mostly Christian student population.
Al Shabaab has made it clear that it targets the Government of Somalia and that those working to support it are a target, regardless of whether they are Muslim or not.
Therefore, when al-Shabaab uses Islam to justify its actions, it does so to win the support of Muslims in countries like Kenya, which are rich grounds for radicalisation. Thus the notion of purity that comes with the “Islam” label is tapped into by the group to present it as incorruptible, similar to the Salafi or Ummah brands that are used to unify Muslims.
Al Shabaab emerged from the social and political dynamics of war-torn Somalia and so it is fueled more by Somali nationalism than by the aim of creating an Islamic state. The use of a pious rhetoric to promise change by returning to the pure foundations of Islam serves a social function that Al Shabaab uses to promote its political agenda.
As argued by Gunning and Jackson, religion is complex and difficult to define and so it is problematic to generalise it. Religion should be seen as a part and parcel of society – a “site of practice attached to power and knowledge embedded within a community of believers”. The rigid dichotomy of “religious” versus “secular” is rooted in European history and politics where religion was seen as irrational in comparison to rational science and therefore confined to the private sphere.
Al Shabaab emerged from the social and political dynamics of war-torn Somalia and so it is fueled more by Somali nationalism than by the aim of creating an Islamic state.
Labeling Islamist groups as “religious” is therefore informed by the Christian West, whose image of the Middle East is that of the “other” – the “fanatic Muslims” – an image that is reinforced by the increased use of religious symbols by Islamist groups. This explains the double standard of why the Euskadi Ta Askatasuna (ETA) of Northern Spain that is shaped by Catholicism is seen as secular yet al-Qaeda, despite displaying diverse secular qualities and ambitions, such as overthrowing regimes, ending occupation, freeing Palestine, and targeting both secular and religious sites, is seen as “a network of Islamic extremists and Salafi jihadists”.
Labelling Islamist groups like Al Shabaab as “religious” risks implying that it is a legitimate representative of Somalis and East African Muslims; yet Islamic practices are shaped by context and are diverse. Muslims in East Africa alone are indeed quite diverse and the fact that some Muslim leaders have come out to condemn the actions of the group serves as proof of this diversity. Al-Shabaab members and their leaders should therefore be seen as only a fraction of Muslims of East Africa, acting not as representatives of Muslims but as a unique group with its own agenda. Regardless of their claims, so-called “religious terrorists” do not necessarily act as they preach; rather their actions are often shaped by political calculations.
The rigid distinction between “the tolerant secularist” versus the “barbaric religious fundamentalist” in today’s discourse on the global War on Terror has had the impact of promoting further conflict and denies Muslims their history, which is distinct from that of the West. This distinction is used to justify the extreme measures taken against so-called Islamic terrorist groups and helps to divert attention from controversial “secular” state violence.
Fear and Loathing: Why Kikuyus May End Up Voting for Ruto in 2022
13 min read. Many believe that the pact between Uhuru Kenyatta and William Ruto prior to the 2013 elections ensured peace in the Rift Valley – the epicentre of the post-election violence of 2007/8 – and delivered the duo the presidency. DAUTI KAHURA speaks to Kikuyus who are wondering why Uhuru has now abandoned Ruto, and whether this politics of betrayal will have a devastating impact on the Kikuyu “diaspora” in the Rift.
The two-week break in the month of December afforded me some time to travel around the Kikuyu populated peri-urban areas bordering Nairobi in Central Kenya (also known as Uthamakistan in today’s political parlance) and in the greater Rift Valley – a segment of Kenyan society that has strong views on the succession politics of 2022.
For the very first time, the ethnic community’s elites who have dictated the pace and rhythm of the country’s politics since 1963 are at a crossroads: they do not have a horse to back. Conditioned and socialised to believe they cannot back someone outside their ethnic cocoon, they are at a loss, mainly because President Uhuru Kenyatta is serving his last term and has not pointed to anybody who could possibly succeed him. In a country where presidential campaigns begin two years before the actual election date, the uncertainty that President Uhuru has created among the Kikuyu rank and file is palpable.
This uncertainty has been exacerbated by the fact that Uhuru is viewed as the most underperforming president since independence; he is now loathed and lampooned in equal measure by his core constituency – the Kikuyu underclass and pretenders to the middle class. Why? “Because after voting for him three times – in 2013 and twice in 2017 – it is very painful to see that we the Kikuyus suffer unmitigated economic disaster, courtesy of his gross incompetence and cluelessness,” said Peterson Gakuo from Ihwagi location, Mathira constituency, Nyeri County.
“We have now come to the realization that the man was all form and no substance. We thrust the presidency onto him because he was supposedly one of us. I can tell you there was no other criterion…we were told he is our leader by the late John Njoroge Michuki. If anybody wanted to negotiate with the Kikuyu vote, he had to talk to Uhuru. And so we were stuck with a man whose only claim to any ‘political fame’ is that he has pedigree. It is the greatest mistake the Kikuyus have ever made.”
The Kikuyu rank and file, suffering from the vicissitudes of President Uhuru’s intemperate economic policies and callousness, have in recent years been showing him the middle finger. They are revolting. Like they say where I come from, “vitu kwa ground ni different.” Things on the ground are different. In Kikuyuland, the name Uhuru is slowly becoming anathema. “Please, please ndukagwetere ritwa riu haha, ndugathokie ngoro, ndakare.” Kindly avoid mentioning that name [Uhuru] here, I don’t want my mood spoilt.
The second reason why this uncertainty is driving the Kikuyus crazy and is taking on a dangerous trajectory is that “Uhuru is carelessly endangering the lives of the Kikuyus of the greater Rift Valley,” said Beth Wairimu from Zambezi trading centre along the Nairobi-Nakuru highway in Kikuyu, Kiambu County, which is some 20 kilometres from Nairobi.
“In 2013, we Kikuyus voted for both Uhuru and William Ruto as a team. There was an understanding that after Uhuru’s 10-year two terms, he would support Ruto. This is publicly acknowledged within the community. This meant the Kikuyu people would equally throw their lot behind Ruto in order to ensure the security of the Kikuyus in the Rift Valley diaspora and to honour his part of the bargain. Now to turn around and betray him is really jeopardising the safety of our people in the Rift. We owe him [Ruto] our trust.”
I shall return to this theme of betrayal, and security, survival and trust issues of a politically-jaded community later. But first, let me begin my story with a meeting that took place exactly two years ago.
Politics of betrayal
In December 2017, just about a month after Uhuru was sworn in after the controversial repeat presidential election of October 26, I sat with two Uthamaki fundamentalists, one a Nairobi city Jubilee Party politician and the other a nouveau riche city of Nairobi real estate businessman. We were at the Sagret Hotel in the Milimani area, a popular nyama choma joint. Although patronised mainly by Kikuyu old money for many years, it has in recent years been attracting a coterie of new money, mostly made in the Mwai Kibaki era between 2003 and 2013. The businessman I was meeting was one of the fellows who made his millions during that time.
“In 2013, we Kikuyus voted for both Uhuru and William Ruto as a team. There was an understanding that after Uhuru’s 10-year two terms, he would support Ruto. This is publicly acknowledged within the community…”
The middle-aged businessman, after soaking in thufu wa thenge (he-goat’s soup), mutura (traditionally-made sausages) and ndudero (stuffed intestines), turned to me and said straight to my face: “Ni ithue twathanaga guku…Kahura ni waigwa? Uthie ukandeke uguo niguo ndaiga nii ndurika ya wa Susana.” It is we [presuming himself to be part of the Uthamaki cabal] who rule this country. Kahura have you heard? You can write that’s what I’ve said, me, a braggart and son of Susan. “Nitwarekania na Ruto…Ruto no riu? Ndagecirie tutioe uria ekire…MoU ya Raila twameikirie kioro, ona ya Ruto noguo tukumeka.” We are finished with Ruto…who is Ruto by the way? He shouldn’t for a moment think we’ve forgotten what he did [referring to the 2007/2008 post-election violence in the Rift Valley region]…we threw Raila’s MoU into the toilet…that’s what we are going to do with Ruto’s.
In December 2002, the National Rainbow Coalition (Narc), fronted by Mwai Kibaki, defeated Kanu, whose flag bearer was the neophyte Uhuru Kenyatta. Narc comprised Kibaki’s Democratic Party (DP), Charity Ngilu (today the governor of Kitui County)’s Social Democratic Party (SDP), Michael Kijana Wamalwa’s Ford Kenya and the breakaway Kanu group that was led by Raila Odinga and consisted of, among others, George Saitoti, Joseph Kamotho and William Ntimama. This Raila group morphed into the Liberal Democratic Party (LDP). (Saitoti, Ntimama, Kamotho and Wamalwa are no longer with us; they all died under different circumstances and are therefore not part of any current coalition.)
In an MoU that is presumed to have been agreed upon by Raila and his LDP group and Kibaki and his DP brigade, in the event that they took power, each group would equitably share cabinet positions. More significantly, there was an understanding that once Kibaki took on the presidency, he would appoint Raila as the prime minister. The long and short of that MoU is that it was never honoured. Five years later, in 2007 (an election year), Raila cobbled up another political party, the Orange Democratic Movement (ODM), that took on Kibaki’s Party of National Unity (PNU), which had also ditched Narc.
Ruto: The key to peace in the Rift Valley?
The disputed presidential vote count in December 2007 led to the massacre of more than 1,000 people, and the displacement of more than 500,000 others, the majority of whom were Kikuyus from the Rift Valley. To cut a long story short, the businessman told me: “Twamurutire nyama ee kanua…eke uria ekaga aria samaki na atofoke rui, kai Ruto ariwe wena ny…e cigana?” We snatched the victory from the lion’s mouth, (basically to mean), we grabbed back power from Raila, who had won it and we told him to go jump into Lake Victoria and do his worst…we were ready to deal with him. So this Ruto, how many b….s does he have?
The duo boasted that if Ruto lives up to January 2020 to be in government or indeed even anywhere, “niukumenya ndiaruire rui Ruaka.” You’ll know I wasn’t circumcised by the Ruaka River, said the braggadocio. “We tamed this Raila man who has given us enough headaches, put him in his place…save for Ruto who entered politics just the other day. I say yet again, we govern this country, we decide among ourselves who will rule the country. The other communities must wait for us to dish out positions to them, and they must be satisfied with what we give them. It is not for nothing that our political and business elites are the most powerful in the country.”
Fast forward to January 2020 and it is the Kikuyu electorate that finds itself torn between the devil and the deep blue sea: it must choose what should “devour” it. Whatever option it takes, it will not be an easy choice because Ruto has presented the Kikuyus with the greatest dilemma. If they do not support Ruto, is there a risk that the violence of 2007/8 will be repeated? As a food seller from Banana in Kiambu County told me, “It is true, the memories of 2007 are vivid, yet were it not for Ruto, Uhuru would not be president and our people in the Rift would not be living in peace and harmony.”
I met the feisty food seller who runs a kibanda (foodshed) 150 metres from the gates of the United Nations complex and US Embassy in Gigiri in December 2019. Serving me chapati and coco beans, she confessed that it had been a most difficult year. “People don’t have as much money in their pockets as they used to do, but God is great, we are alive.” I asked her why the Kikuyus, who had willingly chosen President Uhuru, were now complaining. She said, “We don’t want to hear that name – he has really annoyed us, it is unbelievable what he has done to us and now to make it worse, he wants to impose Raila on us.”
Fast forward to January 2020 and it is the Kikuyu electorate that finds itself torn between the devil and the deep blue sea: it must choose what should “devour” it. Whatever option it takes, it will not be an easy choice because Ruto has presented the Kikuyus with the greatest dilemma. If they do not support Ruto, is there a risk that the violence of 2007/8 will be repeated?
The lady, who looked to be in her mid-40s, told me she would be voting for Ruto come 2022. “At least the man is firm, focused and resolute.” The food peddler said that deep in their hearts, Kikuyus know they owe Ruto a political debt: “We entered into a pact with the Kalenjin people, that they would help our son capture power and protect our people in the Rift. In return, we would lend our support also to their son after Uhuru’s terms ended. It would now be disingenuous for the Kikuyu people to renege on that promise…it actually would be dangerous. I have relatives in the Rift and I can tell you, they are not sitting pretty.”
“So you are alive to the post-election violence of 2007?” I asked her.
“Oh very much so.”
“How then do you explain the violent backlash from the same people you claim to have been protecting your relatives?”
“We forgave Ruto,” the lady said to me. “As Christians, we are called to forgive our transgressors…but we’ll never forget, no, we cannot forget. It was very painful. But remember also, Ruto was working under the command of Raila. He takes the bigger blame. Raila is very wicked, absolutely wicked – he will never be king in this country. Look now at what he has done after realising he cannot win through the front door. He has gone ahead to confuse Uhuru so that he can capture power through the back door.”
The woman claimed that Uhuru is a victim of Raila’s charms, machinations and political whims. I asked her what she meant. “Can’t you see how he crafted the handshake – Raila is the architect of the handshake and BBI and Uhuru fell for the ploy. “Uhuru ni kirimu gitu.” Uhuru is our stupid son. President Uhuru has thoroughly let down the community…“No ona kuri uguo, mwana muciare ndateagwo.” You do not throw away a baby you have given birth to. Even though President Uhuru has wasted the aspirations of the Kikuyu people, he still remains painfully one of our own.
Raila: The central hate figure
I learnt that the Kikuyu people were back to stereotyping Raila, and by extension, the Luo community: the insults and innuendoes have been revived. “We will never let the country be ruled by an uncircumcised man. Let me ask you, why is Raila so eager to rule Kenya? The day the Luos take power in this country we’re finished, so that will never happen. That’s why we’ll reject anything to do with Raila and Uhuru together…so take it from me, we’ll shoot down that BBI of theirs.”
Once again, Raila is the central hate figure of the Kikuyu people. “It is this handshake that worsened our economic plight,” said a straight-faced Peter Macharia, a businessman who runs a tours and travel company. “Raila should have stayed in the opposition because he is best at checking the government, but not as a president, because anyway, he’ll never be.” According to Macharia, Raila was born to dabble in opposition politics and not the politics of leading the country as its head of state.
“Uhuru, during the presidential campaigns, reminded us – for the umpteenth time – that Raila was uncircumcised, and was therefore a boy and that national leadership was not for boys. Now we see them holding hands. Did Uhuru circumcise Raila?” asked a woman from Kagio Market, in Kirinyaga County. “Uhuru should stop joking with us; if he has circumcised him, he should come back here and tell us so.”
A lady pastor who runs an evangelical church in Githurai, Nairobi County, said that she would vote for Ruto. “There’s a way he connects with the people of God. The good Lord could be using him to pass a special message to us Kikuyus. I don’t trust Raila – why does he exhibit an unbridled thirst for power? I’ve always doubted whether he’s Godly.
“Have you ever heard of the dog whistle theory?” asked a mzee from Kiambu. The Kikuyu people had been conditioned to be wary of Raila’s movements, utterances and whatever else he did, the old man said. “When Raila opens his mouth to speak, they automatically interpret their own things, totally different from what other communities have heard him say. Lazima tupambane na hii ufisadi vilivyo. (We must slay the dragon of corruption relentlessly.) The Kikuyu interpret the statement to mean: We must deal with these Kikuyus firmly wherever they are.” The mzee said right now to sell Raila and anything associated with him in central Kenya is like pounding water in a mortar with a pestle.
“Kikuyus are waiting for Uhuru to tell them this is the direction we the Kikuyu community will be taking,” said the old man. “If he says we’re going west, they will take the opposite direction. That’s what they plan to do because they want to teach him a lesson by acting contrary to his wishes.”
Anger begets anger. “Kikuyus plan to vote for Ruto to punish Uhuru. Absurd as it may sound, Kikuyus have resolved to give President Uhuru the contempt card because he has already shown he doesn’t want Ruto to succeed him. After re-electing him for a difficult second time, the Kikuyus are bitter with President Uhuru for exposing them by not grooming a fellow Kikuyu to succeed him. Instead he looks like he’s rooting for Raila.” In the logic of the Kikuyu people, said the mzee, it is akin to a man who, hoping to evade stepping onto urine, jumps straight into faeces.
The Kikuyu people’s political wisdom can be puzzling, said mzee Kimiti from Gikambura in Kikuyu constituency, Kiambu County. “I describe them as oogi aa jata aria matoi kendu, the wise men who know nothing.”
“In 2002,” recalled Kimiti, “the Kiambu people went against the grain and voted for Uhuru Kenyatta to a man when practically every other Kikuyu was rooting for Mwai Kibaki. In their strange logic, Kibaki wasn’t one of their own – even though he spoke the Gikuyu language, hailed from central Kenya and had served in prominent positions, including as an influential finance minister and vice president. These were not enough to qualify him to be called a son of the soil.”
Anger begets anger. “Kikuyus plan to vote for Ruto to punish Uhuru. Absurd as it may sound, Kikuyus have resolved to give President Uhuru the contempt card because he has already shown he doesn’t want Ruto to succeed him…”
But in 2007, the people of Kiambu turned around and voted for Kibaki. “Do you know why?” posed the mzee. “Because Uhuru had joined Kibaki’s PNU bandwagon. Had he not, they would have followed him to wherever he would have taken them, abstained, or thrown their votes to the dogs. Now they are rallying against President Uhuru but still waiting for him to show them a sign. Brainwashed into believing that voting for Raila as president would be the beginning of their end, they are currently confused with the newly found bromance between their son and Raila. [Kiambu] Kikuyus can kill you with their wisdom: their very own Uhuru is finishing them from within, yet they firmly believe that Raila, who has never done any harm to them, will actually finish them.”
Gakuo said the only option Kikuyus currently have is to hedge their bets on Ruto. “President Uhuru has been waging war on Ruto… for what? When we voted for them for the first time in 2013, we knew both were running away from the ICC [International Court of Justice]. Uhuru therefore knew Ruto’s character. Why is he now turning around, telling us Ruto is the most corrupt state officer in his government? Uhuru arenda gutukuwa urimu niki? Why is Uhuru taking us for fools? That narrative of Ruto being the greatest thief is neither here nor there and in any case it’s already late in the day. Muceera na mukundu akundukaga taguo. He who is in the company of a thief is also a thief. They [the Kenyattas] have stolen from their very own Kikuyu people. What have they done for the people?”
Amid the confusion and paradoxes reigning in Uthamakistan, an urgent need for the Kikuyu people to assuage their collective guilt is also quietly at play. Businessman Ndiritu Kanyoni told me that Kikuyus want to vote for Ruto because it would ostensibly “right” the “wrong” of being the only community that doesn’t vote for those who are not from their own ethnic group. “They want, for the first time, to prove to the other ethnic communities that they indeed can vote for a non-Kikuyu,” said Kanyoni. “The guilt of being seen as the most tribalistic people when it comes to voting for the president has been gnawing at them. Voting for Ruto will, in their view, assuage that guilt.”
The businessman said in 2003 the Kikuyu political elite shafted Raila (read Luos) and the result was the post-election violence of 2007/2008. In 2013, the same elite shafted Musalia Mudavadi (read Luhyas) when Uhuru Kenyatta claimed demons had visited him and caused him to change, a presumed pact between him and the son of Moses Substone Mudavadi. The result, pointed out the businessman, was creating an unnecessary mistrust among a community that today the Kikuyu people would be counting as its political ally. After 2017, the elite has unashamedly shafted the Kalenjin by labelling Ruto as the most corrupt man in this part of the world and therefore unfit to be president. “We cannot be the tribe that shafts every other ethnic community.”
Musalia was “a safe pair of hands,” opined Kanyoni: “innocuous, malleable, stands for nothing…the Kikuyu political elite would have easily controlled him…But the elite is know-it-all, tactless and full of hubris.”
The “other” Kikuyus
Wairimu from Zambezi reminded me this was not the time to “annoy” Ruto by reneging on a deal that every Kikuyu knows about. “For the sake of the Kikuyus living in the North and South Rift – Ainabkoi, Burnt Forest, Eldoret, Endebess, Kericho, Kitale, Londiani, Moi’s Bridge, Matunda, Molo, Mt Elgon, Njoro, Soy, Timboroa, Turbo and others places – we Kikuyus will vote for Ruto. Call it political insurance, safety and security and survival for our people.”
“The only person who can ensure the protection of Kikuyus in the Rift is William Ruto – not Uhuru Kenyatta, not Raila Odinga,” said Wainaina, one of the wealthier Kikuyu businessmen in Eldoret town. Wainaina said that the notion that the state can protect Kikuyus who live away from the motherland was false and misleading: “Mwai Kibaki was the president when violence was visited upon the Kikuyus in the Rift Valley. Why didn’t he protect us? Since then, we’ve been sitting ducks and we’re on our own and we know it. If violence were to erupt in the Rift Valley, it’s us Kikuyus who’d suffer the brunt and Uhuru would be nowhere – he’s been unable to protect our businesses, what about our lives? We’re not gambling. Ruto ndio kusema hapa Rift Valley,” Ruto’s the final word in the Rift Valley…that’s it.”
Amid the confusion and paradoxes reigning in Uthamakistan, an urgent need for the Kikuyu people to assuage their collective guilt is also quietly at play. Businessman Ndiritu Kanyoni told me that Kikuyus want to vote for Ruto because it would ostensibly “right” the “wrong” of being the only community that doesn’t vote for those who are not from their own ethnic group.
After the post-election violence, the Kikuyus from the Rift Valley region came to the conclusion that their aspirations and those of the Kikuyus from the motherland were incongruent: “They consider us collateral damage, a political expediency to be toyed around with. They don’t care if we’re killed in huge numbers,” said Wainaina. “When some of our people retraced our ancestry back in central Kenya, they were not welcome. They told us to go back to where we belonged, that there was no space for us…that we’d left many years ago. It was as shocking as it was painful.”
In his machismo style, the businessman at Sagret Hotel said: “It’s we, the Kikuyus from central Kenya, who tell the Kikuyus in the Rift what to do politically and they follow. What have been their options? If some of them are caught in the political melee, well, it’s because we’ll not cede ultimate power just because some of them will be slaughtered.”
“Hustler” and “dynasty” are two narratives that have entered into the Kenyan political lexicon. It appears that the hustler narrative has been accepted by the Kikuyus’ wretched of the earth. It implies “emancipation from the predatory Kenyatta family”, said a politician from central Kenya.
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