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PROXY WARS: The intrigues leading to Kenya’s invasion of Somalia

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WAR GAMES: The intrigues leading to Kenya’s invasion of Somalia
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“To my daughter I will say,
‘when the men come, set yourself on fire’.”

– Warsan Shire, Teaching My Mother How to Give Birth

 

In July 2011, while the world’s attention was focused on the famine in Somalia, a plot was being hatched in Nairobi to cross the Kenya-Somalia border and wage a war against the terrorist group Al Shabaab.

Kenya had been spoiling for a fight with Somalia for some time. Cables released by WikiLeaks indicate that the Kenyan government had intentions to militarily intervene in Somalia as early as 2009, and had been trying to convince the United States government about the wisdom of its plan. At that time, the Mwai Kibaki coalition administration had big plans for Kenya’s northeastern and coastal regions, including a large deep-sea port in Lamu and a new transport corridor known as the Lamu Port and South Sudan Ethiopia Transport (LAPSSET) that would link the port to Ethiopia and to the oil wells of the newly independent state of Southern Sudan. Creating a safe buffer zone within Somalia to protect Kenya’s ambitious project was part of the plan. Dubbed the “Jubbaland Initiative”, the ultimate goal was to install a Kenya-friendly regional administration in Kismaayo, the capital of Somalia’s Juba region that borders Kenya. According to a newspaper report published in the Daily Nation, in December 2009, Kenya’s then Foreign Minister, Moses Wetang’ula, told a sceptical senior US official that if the Kenyan military invaded Somalia, its success was guaranteed – it would be like “a hot knife through butter”.

However, Kenya’s opportunity for military intervention in Somalia only came in the last quarter of 2011 when David Tebbut, a British tourist, was killed and his wife Judith kidnapped while on holiday at the Kenyan coast. What at first appeared to be the work of pirates or criminal gangs was quickly attributed by the Kenyan government to Al Shabaab, which controlled large swathes of south and central Somalia. (The extremist group denied being involved and, according to the BBC, the British government concluded that “those holding her were Somali pirates, purely after money, and not the extremist insurgency group, Al Shabaab”).

Kenya’s then Foreign Minister, Moses Wetang’ula, told a sceptical senior US official that if the Kenyan military invaded Somalia, its success was guaranteed – it would be like “a hot knife through butter”.

The official reason for Kenya’s mission was to seize control of the port of Kismaayo in order to cut off Al Shabaab’s economic lifeline. The Kenyan forces were assisted in their mission by the Ras Kamboni militia led by Sheikh Ahmed Mohammed Islam, popularly known as Madobe. Interestingly, Madobe had at various stages of his career as an insurgent been a member of the extremist organisation Al Itihad, the Islamic Courts Union (ICU) that took control of Mogadishu in 2006, and also of Al Shabaab. Prior to joining the Kenyan forces, he had fallen out with the Ras Kamboni Brigades founded by his brother-in-law Hassan Turki, a career jihadist who had joined forces with Al Shabaab to lay claim over Kismaayo. American journalist Jeremy Scahill, in his book Dirty Wars: The World is a Battlefield, says that Madobe’s change of heart vis-à-vis Al Shabaab came about after he spent two years in an Ethiopian prison after he was captured while fleeing Ethiopian and American forces when the ICU fell in 2006.

In the early part of 2011, prior to joining forces with Madobe’s militia, the Kenyan government had plans to support Mohamed Abdi Mohamed “Gandhi”, the former minister of defence and an Ogadeni from the Juba region, to administer a potential Jubaland regional authority called “Azania” that would serve as a buffer zone between Kenya and Somalia. It is believed that the Ethiopian government opposed the creation of an Ogadeni-dominated authority in Jubaland (though Madobe also belongs to the Ogadeni clan) because it believed that such an entity had the potential to embolden secessionist sentiments in Ethiopia’s Ogaden region, and so Kenya – an important ally of Ethiopia – abandoned the plan.

Contradictory US policies towards Somalia

Contrary to popular belief, Kenya’s decision to invade Somalia was a “proxy war” that the US government was not willing to engage in. Wikileaks cables indicate that while the Kenyan government had been pitching the invasion to the US government for some time, it had always met resistance and scepticism. US officials were concerned that the mission could turn out to be more complicated and expensive than Kenya predicted.

It is possible that the US government realised that its support for the 2006 Ethiopian invasion of Somalia that led to the ouster of the Islamic Courts Union from Mogadishu had led to more, not less, instability; hence it did not want to repeat the same mistake. Initially, the United States had mixed feelings about the rise of the ICU, which consisted of groups of businesspeople, Muslim clerics and others who had united to bring about a semblance of governance in a dysfunctional state. The former US Assistant Secretary of State for African Affairs, Herman Cohen, told Scahill that some Somalia experts within the US administration welcomed the expulsion of murderous warlords in Mogadishu by the ICU. However, fears that the ICU (which had gained legitimacy through religion rather than the clan, which has been a divisive factor in Somalia) could morph into something more sinister led to a decision to remove it from power. The then US Assistant Secretary of State for African Affairs, Jendayi Frazer, is widely credited for convincing the US government to support Ethiopian forces to oust the ICU, an action that the BBC journalist Mary Harper describes as “one of the most counterproductive foreign initiatives towards Somalis in recent years”.

The potential “Talibanisation” of Somalia was probably what prompted the United States to back the Ethiopian forces that pushed the ICU out of Mogadishu in December 2006, just six months after the latter had taken control of the city. The ICU then broke up into factions, the most extreme of which was Al Shabaab, which took control over most of south and central Somalia.

In the early part of 2011, prior to joining forces with Madobe’s militia, the Kenyan government had plans to support Mohamed Abdi Mohamed “Gandhi”, the former minister of defence and an Ogadeni from the Juba region, to administer a potential Jubaland regional authority called “Azania” that would serve as a buffer zone between Kenya and Somalia.

An advisor to the US military told Scahill that the Ethiopian invasion of Somalia in 2006 was a classic proxy war coordinated by the United States government, which provided air power and paid for the roughly 50,000 Ethiopian troops that ejected the ICU from Mogadishu. The invasion was in line with the US “no boots on the ground” policy, whereby the US financially supports African forces on the ground without actually sending US military personnel to the conflict zones.

However, the advisor also admitted that there were some US forces, including the CIA, on the ground in Somalia. Prior to the Ethiopian invasion, the US had started supporting a new group comprising pro-government leaders and warlords under the Alliance for the Restoration of Peace and Counterterrorism, which accepted US support in exchange for handing over key Al Qaeda members. US support for groups that were perceived as criminals or illegitimate by a large number of Somalis gained the ICU many converts.

The Ethiopian invasion was extremely costly in terms of the number of lives lost and the large scale displacement. Reports began to emerge of Ethiopian soldiers slaughtering Somali men, women and children “like goats”. Ethiopia, which has had historical and bitter disputes with Somalia for decades, and which is feared and loathed in equal measure by Somalis, was beginning to look like a brutal occupying force. Al Shabaab eventually drove out the Ethiopians in 2008. In other words, the Ethiopian invasion succeeded in replacing the ICU with a virulent and lethal force of its own making. And the United States was caught, once again, with egg on its face.

Political scientist Michael J. Boyle says that just as US efforts to eliminate Mohammed Farah Aideed had backfired in 1993, the US decision to remove the ICU was equally disastrous because it succeeded in overthrowing the only force that was capable of restoring a semblance of order on the streets of Mogadishu and other parts of Somalia. During its short reign, the ICU is credited with flushing out warlords from Mogadishu and with successfully resolving land and other disputes, which Somalia’s weak and highly corrupt Transitional Federal Government (TFG) had been unable to do since it assumed power in 2004.

Having failed to root out extremist groups from Somalia, the United States then embarked on a strategy to include the same groups within the UN-backed TFG, a move that astounded even the most die-hard critics of US foreign policy. It is rumoured that in 2008 a senior US diplomat convinced Abdullahi Yusuf, the TFG’s first president, to resign in order to pave the way for a TFG leadership comprising members of the ousted ICU, which had splintered into various groups, including Al Shabaab, that were opposed to the TFG. Having invested so heavily in Ethiopian forces to remove the ICU from Somalia, it appeared extraordinary that the United States would now be planning for its inclusion in the transitional government.

The then US Assistant Secretary of State for African Affairs, Jendayi Frazer, is widely credited for convincing the US government to support Ethiopian forces to oust the ICU, an action that the BBC journalist Mary Harper describes as “one of the most counterproductive foreign initiatives towards Somalis in recent years”.

President Abdullahi Yusuf finally ceded to US government pressure and resigned in December 2008, eight months before his tenure was to end. Subsequently, a meeting was held in Djibouti, where there is a sizeable US military presence and where Sharif Sheikh Ahmed (the leader of the ICU), Nur Adde and Maslah Siad Barre (the former Somali president Siad Barre’s son), among others, were gathered to vie for the presidency of Somalia under the auspices of the United Nations Political Office for Somalia (UNPOS). Although the elections seemed to favour Barre, UNPOS, headed at that time by the Mauritanian Ould Abdallah, proposed and selected 275 additional parliamentarians drawn mainly from the ICU to the already bloated 275-member parliament. This skewed the election in favour of the ICU leader who the US government now viewed as “a moderate Islamist”. “To veteran observers of Somali politics, Sharif [Sheikh Ahmed]’s re-emergence was an incredible story,” wrote Scahill. “The United States had overthrown the ICU government only to later back him as the country’s president.”

This hoodwinking and double-dealing would later manifest itself in the Barack Obama administration’s 2010 “dual-track” policy in Somalia whereby the US government dealt with the transitional government in Mogadishu while also engaging with regional and clan leaders, including warlords. Under Obama, covert operations, such as drone attacks, targeted killings and wiretapping, also escalated. Scahill claims that while Obama appeared to be scaling down operations in Guantanamo Bay, illegal detentions were being “decentralised” and “outsourced” to secret prisons in other places, including Mogadishu.

KDF blunders at home

It was against this background that the US Secretary of State for African Affairs, Johnnie Carson, told a high-powered Kenyan delegation attending an African Union Summit in Addis Ababa in January 2010 that if the Kenyan troops were defeated, there would be negative domestic repercussions. Carson wanted a more “conventional” method of addressing the Al Shabaab menace and was deeply pessimistic about Kenya’s ambitions to create a buffer zone along its border. Some neighbouring countries also expressed fears that the invasion could have the unintended consequence of strengthening Al Shabaab and making Kenya more insecure.

As the critics predicted, retaliatory terrorist attacks in Kenya escalated after Kenyan forces entered Somalia in October 2011, and particularly during the first few months after the new government of President Uhuru Kenyatta was elected in 2013. An analysis by Nation Newsplex showed that there were nine times more terror attacks in the 45 months after the invasion than the 45 months before it.

Having failed to root out extremist groups from Somalia, the United States then embarked on a strategy to include the same groups within the UN-backed TFG, a move that astounded even the most die-hard critics of US foreign policy.

The most shocking attack took place in September 2013 at the up-market Westgate mall in Nairobi where 67 people were killed. What stood out in this and subsequent attacks was the inept response by the Kenyan security forces, including the Kenyan Defence Forces (KDF). In an article published in the local press immediately after the attack, a retired military officer, Lieutenant-General Humphrey Njoroge, said that the rescue mission suffered from a broken command structure, poor screening of people fleeing the mall and outright incompetence, which may have handed the terrorists an upper hand. The blunders began in the first hours of the attack. By mid-afternoon, some three or four hours after the terrorists began their shooting spree, the US-trained anti-terrorist Recce squad seemed to have isolated and cornered the terrorists. However, the subsequent arrival of KDF soldiers may have contributed to disrupting the chain of command.

In an article published in Foreign Policy on the second anniversary of the attack, Tristan McConnell, a foreign correspondent based in Nairobi, claimed that by the time the Recce squad and KDF entered the mall, most of the so-called “hostages” in the mall had already been evacuated safely, thanks to the courage of a few uniformed, plainclothes and off-duty police officers who responded to emergency calls. “Far from a dramatic three-day standoff, the assault on the Westgate mall lasted only a few hours, almost all of it taking place before Kenyan security forces even entered the building,” wrote McConnell. “When they finally did, it was only to shoot at one another before going on an armed looting spree that resulted in the collapse of the rear of the building, destroyed with a rocket-propelled grenade. And there were only four gunmen, all of whom were buried in the rubble, along with much of the forensic evidence.”

Meanwhile, a judicial commission of inquiry on the three-day siege of the mall promised by President Uhuru Kenyatta has yet to materialise.

The following year, in June, more than 60 men were killed in a horrific terror attack in Mpeketoni in Lamu County. As during the Westgate attack, the security services were again implicated in bungling the rescue operation. There were stories of police stations in Mpeketoni abandoned prior to the attack and villagers left on their own to deal with the terrorists. Their frantic phone calls to the police requesting for reinforcements were apparently ignored. Many spent several nights in the bush waiting for help to arrive. Kenya’s Independent Policing Oversight Authority blamed the police for failing to heed to warnings about an imminent threat and for not responding to the villagers’ cries for help in time.

The worst attack – in terms of numbers – took place in April 2015 when 147 students at Garissa University College were butchered by Al Shabaab. Again, the security forces’ response was a little too late. According to media reports, soldiers from a military barracks in the vicinity of the university cordoned off the campus but failed to go in and rescue the students. The alarm at the base of the specially-trained Recce squad on the outskirts of Nairobi was sounded at 6 a.m. on the morning of the attack but the squad was put on standby as the military said it could handle the situation. As a result, its members arrived in Garissa nearly eleven hours later, long after a majority of the victims had been killed. Even though a core team had arrived in Garissa by 2 p.m., the rescue operation did not begin till around 5 p.m. It took the officers only half an hour to corner and kill the terrorists. If they had arrived earlier, many lives could have been saved. Most of the students’ parents blamed the delayed security response for the death of their children.

This hoodwinking and double-dealing would later manifest itself in the Barack Obama administration’s 2010 “dual-track” policy in Somalia whereby the US government dealt with the transitional government in Mogadishu while also engaging with regional and clan leaders, including warlords.

Kenyans thought that President Kenyatta’s stand on Kenya’s military presence in Somalia would soften after these attacks. However, this did not happen. Kenyatta said that Kenyan forces would remain in Somalia until the government there was stable. Those demanding for a withdrawal of Kenyan troops from Somalia were labelled as “talking the language of the terrorists” and admonished as unpatriotic.

KDF blunders in Somalia

Four months after KDF entered Somalia – when it became apparent that the forces were not making substantial headway, and after the Somali government sent out feelers that it was not happy with a foreign force within Somali territory – a deal was made for the Kenyan forces to join the other African forces enrolled under the African Union Mission in Somalia (AMISOM).

Under the new arrangement, Kenyan troops were “re-hatted” as AMISOM, and were allowed to continue with their mission in southern Somalia. The agreement also allowed the KDF to claim compensation for equipment lost or destroyed during the invasion. According to official sources, the military operation had been costing the Kenyan government about 200 million shillings (about $2.3 million) per month. The new arrangement, funded mainly by the United States and European countries, alleviated this heavy financial burden on the Kenyan taxpayer and also gained the mission legitimacy.

In September 2012, almost one year after the Kenyan invasion, Kismaayo, the prized port that was Al Shabaab’s main economic base, fell to the Kenyan and Ras Kamboni forces. It was a major victory for the Kenyans, but one that would soon be marred by rumours of Kenyan and Ras Kamboni soldiers exporting charcoal from the port, despite a UN Security Council ban.

It is estimated that before the Kenyan and Ras Kamboni forces pushed out Al Shabaab from the port of Kismaayo, the militant group was exporting about one million bags of charcoal to the Middle East and Gulf countries every month. (Slow-burning charcoal is a much sought-after cooking fuel in the Gulf states, where it is used to roast meat and also to light fruit-flavoured waterpipes called shisha). When the Kenyan and Somali forces entered Kismaayo, they discovered an estimated four million sacks of charcoal with an international market value of at least $60 million lined up ready for export. The UN Monitoring Group on Somalia and Eritrea alleges that the Kenyan and Ras Kamboni forces continued exporting the charcoal despite the UN ban, and that the export of charcoal more than doubled under their watch.

In its 2014 report to the UN Security Council, the UN Monitoring Group also made the astonishing claim that revenue from the port of Kismaayo – which was being collected through taxes, charcoal exports and the importation of cheap sugar – was equally divided between the Kenyan forces, the Interim Jubaland Administration headed by Ahmed Madobe and Al Shabaab. There were also rumours of KDF and Al Shabaab entering into mutually beneficial financial partnerships at roadblocks where “taxes” were collected from vehicles.

There were stories of police stations in Mpeketoni being abandoned prior to the attack and villagers being left to their own devices to deal with the terrorists.

All these allegations, however, have been denied by the Kenyan government, but they do not surprise many Kenyans, who have still not got over the fact that Kenya’s security forces indulged in a massive looting spree during the Westgate mall attack; until this attack, the Kenyan military was generally viewed as being more disciplined and less corruptible than the country’s notoriously corrupt police force. As the Kenyan opposition leader Jakoyo Midiwo, who has for some time been advocating for the withdrawal of Kenya troops from Somalia, commented, “When citizens of Somalia come to realise what our soldiers are doing on their soil, they are bound to retaliate. When this happens, it is the ordinary Kenyan who will suffer.”

None of these allegations affected how the KDF was viewed at home. In fact, the then Chief of the Defence Forces, General Julius Karangi, who has the look and demeanour of a chubby teddy bear rather than that of a military commander, was celebrated as a hero by the country’s leadership and reports about KDF’s involvement in the charcoal trade in Somalia were largely dismissed.

Part of the reason why the Kenyan forces might have got away with their alleged misdemeanours is because of the lack of a clear and strong command structure within AMISOM. Its headquarters in Mogadishu, dominated largely by Ugandan soldiers, appears to be operating independently, with little collaboration with foreign intelligence agencies or sufficient oversight by donor countries. In fact, when the allegations about illegal charcoal sales appeared in the press, there was no response or threats of withdrawal of funding for Kenyan troops from European Union countries, AMISOM’s largest funders, which surprised many. This could be because the government in Mogadishu, which has the backing of the international community, is almost entirely dependent on AMISOM for security, though there are plans underway to strengthen the Somalia National Army.

In its 2014 report to the UN Security Council, the UN Monitoring Group also made the astonishing claim that revenue from the port of Kismaayo, which was being collected through taxes, charcoal exports and the importation of cheap sugar, were equally divided between the Kenyan forces, the Interim Jubaland Administration headed by Ahmed Madobe and Al Shabaab.

Writer Velda Felbab-Brown, in an article published in Foreign Affairs in June 2015, explains why, despite some success in routing out Al Shabaab, the African Union forces have so far been unable to completely subdue the terrorist organisation. The main reason, she says, is because “offensive operations are decided mostly on a sector bases, with the forces in each area reporting and taking orders from their own capitals”. Because of this fragmented and uncoordinated approach, there is a perception that AMISOM is politically manipulated by troop-producing countries, especially Kenya and Ethiopia. When Ethiopia joined AMISOM in 2014, some Somali analysts even wondered how a country that had invaded Somalia in 2006 could be allowed to re-enter it militarily under the banner of the African Union.

Meanwhile, more than six years after Kenyan boots entered Somalia, there seems to be no stabilisation plan for the region, nor any exit strategy for the Kenyan forces. KDF is still in Jubaland and Madobe is its president. Like the Ethiopians, who invaded Somalia in 2006 and stayed on for two years, the Kenyans have started to look and feel like an occupying force.

Because of this fragmented and uncoordinated approach, there is a perception that AMISOM is politically manipulated by troop-producing countries, especially Kenya and Ethiopia.

For now, it appears that any decision President Uhuru Kenyatta makes regarding Kenya’s presence in Somalia will be guided by what his military commanders and security experts advise him – and to a certain extent, by the countries funding AMISOM – not by a well thought-out policy to bring about long-term stability in Somalia and to forge stronger ties with the government in Mogadishu.

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Rasna Warah is a Kenyan writer and journalist. In a previous incarnation, she was an editor at the United Nations Human Settlements Programme (UN-Habitat). She has published two books on Somalia – War Crimes (2014) and Mogadishu Then and Now (2012) – and is the author UNsilenced (2016), and Triple Heritage (1998).

Politics

Harsh Economic Times, Political Uncertainty…and Now Corona

Kenyans were already struggling with tough economic conditions and political tensions when COVID-19 appeared. Lockdowns and dwindling incomes have now made their lives much more difficult, even as they pray for the virus to be vanquished.

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Harsh Economic Times, Political Uncertainty…and Now Corona
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Our live were ruined among the leaves,
We decayed like pumpkin in a mud field
~ Mazisi Kunene, South African anti-Apartheid poet

They say when it rains, it pours, and calamity comes with its brother. The revelation that the dreaded coronavirus had, about two weeks ago, finally found its way into Kenya threw the country into a state of pandemonium. Until then, Kenyans viewed the virus as a devastating but “alien” disease.

It was not until the quasi-lockdown was ordered by the government that Kenyans realised that beyond the confusion and panic, a much worse situation was threatening to compound and exacerbate an economic meltdown they have been experiencing for the last 20 months or so. The “alien” ailment has not only brought with it bewilderment, but is threatening to lock them down, literally, to starvation.

The virus, of the genus corona, was first detected in Wuhan Province in China in December 2019, hence the name COVID-19 (coronavirus disease of 2019). Three months later, when Kenyans first heard about a disease that was killing the Chinese quicker than flickering fireflies, they brushed it off as one of those phenomena that occur in far-off countries in the East.

The disease could not have come at a worse time for Kenyans. Experiencing harsh economic times and political uncertainty, many Kenyans concluded that the gods have conspired to punish them. “For how else do you explain the disease coming to Kenya at a time when we are faced with the toughest of economic hard times?” posed a woman.

That plane from China

“This is the modern Armageddon, the end of times is nigh because we’ve deviated from God’s ways. It is a message from God who is angry with us. We’ve sinned too much and this is a sign from God who is asking us to turn from our wicked ways and repent of our sins,” prophesied a street vendor in Nairobi selling tree tomatoes, popularly known in Kiswahili as matunda damu. But after this revelation of a messianic message, the woman admitted that the hint of a complete lockdown by the government was a sure way of strangling the livelihoods of people like her.

“Ndiraikara mucii nacio ciana irie ke?” You’re asking me to stay at home, what will my children eat? “Ako corona niguturaga, reke tukuire guku bara-ini”. If the coronavirus is going to kill us, let us then die on these streets, hustling. President Uhuru Kenyatta’s government has already killed our businesses, now he is asking us to stay at home – tumurie kana twikie atia? We feed on him? Or how does he propose we should fend for our families?

The vendor was angry that the president exhibited a laissez-faire attitude towards battling the deadly virus. “Why didn’t he stop the plane that came from China? If he had done that, we wouldn’t be in this bad situation and our livelihoods would not be threatened.”

The plane that she was referring to was a China Southern Airlines flight that was allowed to land at Jomo Kenyatta International Airport (JKIA) on 26 February 2019. The flight had arrived in Nairobi despite a directive forbidding flights originating in China to land in Kenya due to the outbreak of COVID-19 in China. Kenya Airways had also by that time suspended all its flights to and from China. This particular plane carried 239 passengers, many of whom were Chinese nationals. The airport employee who posted a video of the plane landing was suspended (and later reinstated through a court order), which suggested that the plane had the government’s permission to land. The reference to this plane and the anger it has generated among the people I talked to was evident throughout all my interviews.

The vendor was angry that the president exhibited a laissez faire attitude towards battling the deadly virus. “Why didn’t he stop the plane that came from China? If he had done that, we wouldn’t be in this bad situation and our livelihoods would not be threatened.”

The weekend before the quasi-lockdown decreed by the government on Monday, 23 March 2020, I was in Nakuru County. My first stop was at the Java House located in CK Patel House in central Nakuru town. It was 10.00 a.m. and there was absolutely no customer. I found the manager sipping her coffee latte. “What’s up?” I asked her. “There’s no one in the house”.

The nonplussed manager said the coronavirus was bad for business. “Look, it is mid-morning, a peak time when customers should be flocking in for their refill, yet we’ve an empty house.”

The coffee house closes at 5 p.m., which is normally a peak hour when commuters wait for the traffic jam to ease off before heading home. “This is not a harbinger of good times,” said one of the lady waiters. “If this situation persists long enough, who knows, the management could easily send us home…this, by the way, is not good at all.”

“The incompetence of this government and President Uhuru is mindboggling,” said a lady I was meeting in Nakuru town. “Why, in God’s name, did he allow the plane from China to land at JKIA?” she furiously wondered aloud. “He should have ordered the plane to turn back, the way it came and never to allow the passengers to disembark. Do we know how many of those passengers could have been infected all the way from China? Do we know how many people they, indeed, could have infected once here in the country? Who knows where those people are and which corner of the country they are in? Did the government ever track them down?”

The lady was convinced that if the government had refused the landing of that plane, it is probable that we would not be so afraid now and there would not really have been a case for a (quasi) lockdown.

“The government now is all over issuing edicts – it must always do the wrong thing first before it turns around to sound the alarm bells,” she said. People seem to be impressed by the new Cabinet Secretary for Health, Mutahi Kagwe, I’m not. What ordinary Kenyans want to know is how, in the event of a complete lockdown, they will earn a living. Period. Endless press conferences threatening us with damnation are neither here nor here. The President recently threatened us, saying the government will crack down on anybody not adhering to the stay-at-home edict. This is uncalled for as well as unhelpful. Does he have any concrete plans for ameliorating the situation and ensuring Kenyans who live from hand to mouth are cushioned?”

Later in the evening, I was at Garden Villa, located on the western side of town as you head to Shaabab residential area. It was completely empty and the waiters were just lounging around. Garden Villa is an expansive nyama choma eatery, as well as a “watering hole” with appropriate cushioned-seat cubicles for groups of people or couples. It was glaringly in its emptiness.

Beatrice, our waitress, was not amused by coronavirus coming to Kenya: “It is no longer a death scare; it has come to actually destroy our livelihoods. I’ve three children – two in university and one is finishing high school. My job has really sustained me, I’ve been able to educate my children so far with the tips that I collect here and there from patrons like you. When there are no customers, we are finished. I’m really worried. If this situation continues like this, we’ll all be declared redundant. What will happen to my children?”

Back in Nairobi, I went to one of my usual Java House haunts. The security guard was forthright: “Hii kitu itauwa watoto wetu. Sijui leo nita peleka nini nyumbani.” This thing called coronavirus will kill our children. Today I don’t know what I will take home.

The main work of security guards like one at Java House is to ensure that patrons enjoy their house coffee without probing eyes and disturbance from the city centre’s “undesirables”, and to usher patrons inside the coffee house. They help customers find car park spaces and guard the automobiles from hoodlums. They will also offer concierge services to patrons, such as carrying stuff to their vehicles. At the end of the day, they have enough pocket money to pass through the supermarket and buy some milk and bread for tomorrow morning’s breakfast. He told me the lack of patrons meant that he would go home empty-handed. “Mungu asaidie afukuze hii coronavirus, kama siyo hivyo tumeisha.” The almighty should intervene and clear this coronavirus as quickly as possible, otherwise we’re all finished.

Prayer warriors

In the city centre, at the famous Jevanjee Park, I met a group of four middle-aged women. They were talking with each other. On the day the government ordered the people not to leave their houses after 7 p.m., they disobeyed and trooped to town. “I’m staying in the house and then what happens?” posed one. “Are my children going to feed on me?”

The women were “professional” casual labourers. Lately they have been getting manual jobs from the Nairobi County as grass cutters and street sweepers.

“We live on a day-to-day basis” said one of the women. “How on earth does the government expect us to survive?”

“Tell you what,” ventured one of the women, “yesterday I went to church because our pastor had sent word around that we must not fail to go church.” She told me she attends a Kenya Assemblies of God (KAG) church. Their pastor told them that coronavirus had come to Kenya to remind Christians that, indeed, these were the last days.

Back in Nairobi, I went to one of my usual Java House haunts. The security guard was forthright: “Hii kitu itauwa watoto wetu. Sijui leo nita peleka nini nyumbani.” This thing called coronavirus will kill our children. Today I don’t know what I will take home.

“Coronavirus is not going to be defeated by worshippers staying at home,” claimed the pastor. “It is going to be wrestled down to the ground by prayer warriors. We must condemn the evil-doer, we must never doubt our faith. We must never doubt our God, Is this the time to let our able God down? Are we doubting Him?”

“I’m a Catholic and we went to church. The parish priest, through jumuia [small community groups], sent word that we must all be in church on Sunday without fail,” said one of the woman. “The priest said the body of Christ is asking us, ‘Are you not going celebrate with me? For is this the time to forsake me?’ It is always fundamentally important to remember to keep the faith.’”

“The churches cannot, even for once, pretend that they care for our welfare,” said another woman. “In these times of economic turbulence and the coming of the corrosive coronavirus, all what the churches can tell us is to still go and congregate in congested spaces. And all what this government can tell us is to sanitise our hands. The church and the government’s work is to fleece us, the people.”

In the evening, I caught up with the same quartet outside Charlies’ restaurant that faces City Hall. It was now past five and they were hungry and angry. “How are we going home?” asked one of them in concealed desperation. All of them lived in the sprawling slums of Nairobi. Seated on the stone bench of the restaurant, they resorted to begging money from any passing man they thought they could remotely recognise.

“The churches cannot, even for once, pretend that they care for our welfare,” said another woman. “In these times of economic turbulence and the coming of the corrosive coronavirus, all what the churches can tell us is to still go and congregate in congested spaces. And all what this government can tell us is to sanitise our hands…”

The following day, I found myself in bustling Kawangware, where the coronavirus threat is real. Kawangware was deserted – many businesses were shut and the human commotion that is usually associated with the sprawling residential area was absent. I dropped in at Sakina’s kibanda (food kiosk-cum-shed) in the Coast area (Mombasani) where she sells very pocket- friendly fresh food to construction workers, bachelors, spinsters, and all manner of casual labourers. Sakina shared the kibanda with her mother, but her mom was not there on that day.

“Where’s your mother?” I asked Sakina.

“She took the kids [her four children] to shags [her rural home],” she responded. (Sakina’s rural home is right in the middle of Nyeri town, at Meeting Point.) “Business is slowly grinding to a halt and we didn’t want to take chances. At least at cucu’s [grandma’s] place, there’s food to eat…this coronavirus has dealt us a huge blow…but alhamdulillahi, it is going to be defeated by Allah.”

In times like this, said Sakina, it’s important to be steadfast and to anchor your whole self in the great faith.

A disease of the rich

At Zambezi trading centre, 19 kilometres from the city centre on the Nairobi-Nakuru Road, Nyambura, a chicken legs and liver vendor, was preparing her foodstuff for her evening customers.

“Are you not afraid of the coronavirus?” I asked her.

“Indeed I am,” she replied. “But can I eat fear? Can my children eat fear? I cannot stay in the house. I must get out to fend for my family. My husband is a salaried worker. He has to wait for 30 days to be paid his paltry pay. We cannot wait for that. It is my responsibility to supplement the ugali he brings home,” said the lady with a great chuckle.

“[President] Uhuru doesn’t care about us small farmers. He has been careless and is playing dice with our lives. After ruining our lives, he has now let this coronavirus invade our country. Why couldn’t he stop that plane from China? Its good coronavirus is infecting the rich and the powerful. They should all perish. They have caused us enough agony,” said Nyambura.

“But trust me, this coronavirus is not going to finish us because our Lord Jesus Christ is on the throne. In the name of Jesus, I condemn the disease,” she added.

She said coronavirus, like the most incompetent government she had lived through, had conspired to kill the spirit of Kenyans. “Yesterday, I paid 100 shillings from 87 to here. Can you imagine? Ordinarily the matatu fare from 87, just after Uthiru to Zambezi, is 30 shillings. For how long can one afford that kind of fare?” She said that from the Old Nation House roundabout stage to Zambezi, passengers were being charged 150 shillings. I hooked up with my freelance tout friend Davy to confirm whether it was true.

“What do you expect when the matatus have been ordered to carry half the seating capacity of their vehicles?” said the freelance tout.(The government has directed that public transport vehicles observe social distancing among their passengers, which means that these vehicles are forced to carry fewer passengers per trip.) Davy told me that many matatu proprietors had grounded their vehicles. “Hakuna haja ya kufanya kazi ya kirai”. It’s pointless to engage in an unprofitable business.

From the city centre to Zambezi, the fare is ordinarily 80 shillings during peak hours and 50 shillings during off-peak hours. “Think about it,” explained Davy. “The matatus that have chosen to be on the road are being fair.”

A 33-seater is now carrying 16 passengers. So passengers are paying 150 shillings instead of 80 shillings in normal times. The Nissan shuttles that ferry 14 passengers are now having to carry just 8 passengers. Davy said if the government was considerate, it would, at least for now, reduce the price of fuel. That way the matatu owners would not be forced to adjust the fares.

“How many people can afford to be paying 300 shillings every day to town?” asked Nyambura. “What is it then you are working for? You’ve not even eaten. And President Uhuru, instead of telling us how the government can come up with ways of helping us alleviate this burden, has gone on air to tell us about the merits of 4G Internet speed. (On March 23, President Kenyatta addressed the nation live on air, extolling the virtues of the business deal between Telcom Kenya and Google Loon, which would now allow for faster speed and easy interconnectivity.)

In the political sphere, Nakuru residents believe that the coronavirus appeared just in the nick of time to save President Uhuru and the Building Bridges Initiative (BBI) team the embarrassment of a looming contest and showdown that was to take place in town at Afraha Stadium. On 21 March 2019, BBI had organised a rally to popularise its agenda. But every indication showed that this was not going to be a walk in the park for the BBI mandarins.

A 33-seater is now carrying 16 passengers. So passengers are paying 150 shillings instead of 80 shillings in normal times. Davy said if the government was considerate, it would, at least for now, reduce the price of fuel. That way the matatu owners would not be forced to adjust the fares.

“This coronavirus has just given the president some reprieve,” said a Nakuru boda boda (motorcycle rider) from Maili Sita trading centre (popularly known simply as Sita) on the Nakuru-Nyahururu Road. The rider opined that had the BBI rally taken place, the William Ruto wing of the Jubilee Party would, most certainly, have upstaged the BBI brigade. It was going to be battle a between BBI and the deputy president’s “Tanga Tanga” band of supporters.

When on 28 January 2019 President Uhuru was in Nakuru town to open a cement factory in Rongai, he detoured to Bahati constituency, where at Sita he lambasted the area MP, Kimani Ngunjiri. As he was castigating him, Ngunjiri was several metres away from the president’s motorcade. “When he left, the boda boda riders came to Ngunjiri and they were high-fiving him and laughing excitedly,” said the boda boda rider. “They promised him that when BBI lands in Nakuru, they would show President Uhuru who ruled Nakuru.”

With all the laments, speculation and tantalising gossip, it is still not clear what impact the coronavirus pandemic will have on the lives of ordinary Kenyans. Many are in still in disbelief and more worried about their livelihoods than about falling ill or dying. But what is clear is that Kenya after corona will not be the same again.

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Inside the Quarantine: Fears of Further Spreading the Virus Haunt the Confined

Perhaps, it won’t take much longer before the country knows whether the mandatory quarantine strategy helped spread or stop COVID-19.

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“We were flying over Juba when the announcement was made”. Chris*, not his real name, recounts to me his whereabouts when Kenya’s Cabinet Secretary for Health, Mutahi Kagwe, made the announcement that mandatory quarantining of all persons flying into Kenya would begin with immediate effect. It was early evening in Nairobi and a likely anxious nation tuned in for what was the tenth briefing from the ministry about the global COVID-19 pandemic that had made its way to Kenya, on the wings of an aircraft much like the one that ferried Chris back from a work trip to London.

Chris and I spoke a day after his arrival. He was in a hotel turned government-sanctioned quarantine facility, the Boma Hotel. The hotel, one of four Kenya Red Cross hotels that had just weeks before been placed under receivership, was dusty, with some rooms not having been cleaned for a while. Dead flies lined his windowsill. Chris complained that layers of dust on his pillowcase and bedsheets caused him discomfort. That was a minor inconvenience in comparison to the subject of our call.

Inside the Quarantine: Fears of Further Spreading the Virus Haunt the Confined

Their flight, which arrived at the Jomo Kenyatta International Airport on the night of Monday, March 23rd, carried what was, in Chris’s estimation, about 60 people.

“After being screened and filling out immigration forms, we were told about the Ministry of Health’s directive. We protested the directive because some of us had made arrangements to self-quarantine. Among those on our flight were students who, I think, wouldn’t have taken the flight if they thought that they would be taken into mandatory quarantine.”

Their protests would seem vain in the face of the government’s efforts to slow the spread of the COVID-19 virus, which has overwhelmed some of the world’s best-equipped healthcare systems, but the response to these complaints from Ministry of Health officials was even more strange.

“The government relented and allowed us to leave the airport and go home, with orders that we report to the Kenya Medical Training Centre (KMTC) at 11:00 a.m for tests.”

Chris was picked up by his driver and recalls reaching his home at about midnight on the 23rd of March.

As he was falling asleep, Doris*, also not her real name, was on a fairly empty flight from Germany, a country hard-hit by the COVID-19 pandemic, via Amsterdam, back home.

“I was alone on my row, the two rows behind me were empty and the lady in the row next to mine also sat alone.”

Her flight touched down in Nairobi on the morning of 23rd March and taxied in. In the nine hours between the landing of Chris’ flight and Doris’, the information that passengers were given had differed.

“Our temperature was taken, then we filled a form saying that we would self-quarantine. Then we filled the older, yellow immigration form. As we did so, there was a lady shouting that we should all go to KMTC at 11:00 am for testing. That was it.”

Doris had already made plans to self-quarantine. She had found an apartment on an online booking site, AirBnB, where she says she was going to stay for the recommended 14-day quarantine. She booked an Uber, made the trip across town to her apartment in Kileleshwa, showered, changed and then booked another Uber to the KMTC.

Before they got to KMTC, if Chris and Doris were carriers of COVID-19 and were contagious, they may have spread the disease to at least three people each. Neither of them has been asked to account for their movements or the people that they came into contact with; termed by the World Health Organisation as contact-tracing. They do not yet know whether or not they have the virus, because they have yet to be tested for it. They weren’t alone on their flights home, and sadly, their experience was not unique to them.

Infection within the quarantine facilities

Both Doris and Chris are worried about the possibility that they contracted COVID-19 while they were in the throes of evident lapses and confusion that they found at the Jomo Kenyatta International Airport, and at the KMTC, where they would go as ordered, on the 24th of March, at 11 am.

“When we turned up at the KMTC, they closed and barricaded the gates behind us, and said that we were officially under mandatory quarantine,” Chris remembers.

Doris witnessed the furore of the now hundreds of passengers grow, with them crowding around Ministry of Health officials for answers, having just been stung by the news. She tried to hang as far back as she could to avoid coming into contact with the virus.

“We were then given three options for places that we would undergo quarantine. Boma Hotel (where Chris would eventually go), the KMTC and the Kenya School of Government (KSG) in Lower Kabete, Nairobi,” she remembers.

“Boma would cost us USD 100 (Kshs 10,000) a night (this figure was later revised downwards), and the conditions at KMTC were just awful, so I chose KSG. When we got to KSG the director of the campus told us that it would cost us USD 40 (Kshs 4,000) a night. People protested again and crowded around the officials telling us this. They then relented and said we would be charged USD 20 (Kshs 2,000) a night.”

A video taken by one of the passengers shows the proximity of the passengers to the officials, and to one another. Again, Doris wisely chose to hang back and wait until things calmed down so that she could get a room.

Chris chose to stay at the Boma hotel.

When Chris’s cohort of travellers arrived at the Boma hotel, he says there was just one receptionist at hand to meet them.

“We all herded around the reception area waiting to be checked in. I am very afraid that we may have been exposed while we were getting into quarantine!”

Later that evening, Chris heard the sounds of sirens outside his window.

A hotel staffer told him that ambulance workers in hazmat suits were there to evacuate a fellow traveller, an elderly lady who allegedly fell ill.

“We are all so worried”.

Even with the inconveniences they have experienced, both Doris and Chris’s worry extends to the unanswered question they both have – were they both complicit in some way in the spread of COVID-19?

“If the government was serious about a mandatory quarantine, why did they let us go home first?” Chris asks, the tone of his voice deep and serious, unfettered by the muffles and crackling on the phone line.

“There were people on our flight who took public transport from the airport and to KMTC. How many people have they been in touch with?”

The question of how the virus spreads is no longer in contention, but there are concerns about the handling of passengers who were being put in isolation in order to contain COVID-19’s spread in Kenya.

Dr Ahmed Kalebi, the founder and CEO of Lancet Laboratories, which is among Kenya’s first private laboratories to offer PCR tests for COVID-19 (Polymerase Chain Reaction tests detect the genetic material of COVID-19, called RNA), shares his worries about the possible contagion that people in the mandatory quarantine may be facing.

“For me, it is a big scare. I am privy to what has been going on in some of those facilities and it has been a bit of a mess.”

“If two hundred people go into a hotel and three or four of them have COVID-19, by keeping them in close proximity we are creating an incubating chamber (for the virus).”

Dr Kalebi believes that in late April, Kenyan cases of COVID-19 will have risen exponentially. Government models publicized on Monday 30th March put Kenya at possibly having 10,000 cases by that time.

Several accounts from persons currently in mandatory quarantine speak to the potential for this, especially as they were being transferred into quarantine facilities. Doris, who was being quarantined at the Kenya School of Government facility, Chris at the Boma hotel, and Caleb* (not his real name), a traveller who is currently in quarantine at the Kenyatta University Conference Centre, all give similar accounts about how risky the first day of their return was.

They were all supposed to be part of a Ministry of Health-led mass testing campaign of the over two thousand Kenyans currently in quarantine facilities, being carried out beginning the weekend ending March 29th.  Chris took a photo of a Ministry of Health official in a Hazmat suit from a common area at the Boma hotel.

Inside the Quarantine: Fears of Further Spreading the Virus Haunt the Confined

Doris, Chris, Caleb and other travelers in quarantine that I spoke to all say that they feel healthy, save for a few coughs and sniffs which they hope are signs of a cold rather than COVID-19, but they may not be out of the woods, even as the days wind down to the end of their quarantine.

“The Coronavirus takes between two to fourteen days to incubate,” says Dr Kalebi.

“If tests were done at day seven, which is what the government is doing this weekend (weekend ending March 29th), you may have only a few people testing positive, who would be taken to more stringent quarantine facilities. Then you wait another week. Assume more people get infected. On day 14, when you are releasing them, people may have been infected in quarantine.”

Fears that the government quarantine facilities may become petri dishes for the spread of the virus are valid, but over-estimated, according to Professor Omu Anzala, who specializes in virology and immunology. He’s also part of the taskforce set up by the government to deal with the COVID-19 outbreak in Kenya.

“There is that possibility but we have not seen anybody go more than 14 to 15 days without having come down with the disease. We have not seen anybody who has gone more than 15 days who is not showing symptoms but is secreting the virus.”

He does say that these still are early days and that the government, like all governments, is learning as it goes deeper into fighting the virus.

It won’t be long before Doris and Chris get out of quarantine. Perhaps, it won’t take much longer before the country knows whether the mandatory quarantine strategy helped spread or stop COVID-19.

This article was first published by Africa Uncensored.

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A Short History of Constitutions and What Politicians Do to Them

History, again, seems to be repeating itself. A system of government established in a constitution is in danger of being radically changed for the benefit of politicians. But this is not new, argues Prof. Yash Pal Ghai. In fact, a peer into the history of constitution-making in Kenya reveals a tendency of the political class to subvert theses processes for their own benefit.

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1963 and Jomo

Kenya has gone through multiple systems of governance, starting with the British and their occupation of our country. There is little point in discussing the British period, though in some important ways it seems that our rulers have been inspired by the ethos of the colonial British. Britain did try, at the demise of its rule, to establish in Kenya, a Westminster parliamentary system but at the same time incorporating special provisions for the protection of minorities. Despite the resistance of the leaders of dominant tribes, particularly Jomo Kenyatta, they had to accept the rights of minorities (mostly indigenous), even though the proceedings took an enormously long time.

The major difference in the negotiations for the 1963 Constitution was over whether Kenya should be a unitary state or divided into regions (majimbo). It became clear to those opposing majimbo that this was the price for independence. The deep divisions among Kenyans (divisions created to a considerable extent by colonial policy) might have led to Kenya’s disintegration, but for pressure from Britain. Jomo realised that it was worth conceding to the British terms: so long as he became prime minister (with Britain out of the way), when he could dispense with majimbo. This he did within a year, with other major changes, making the state highly centralised—and under his control, not as prime minister but as executive president. Jomo, it has to be said with sadness, set an extraordinarily bad example for a head of state, with no respect for democracy or integrity. We still suffer from these ailments, which his son has promised to remove—with BBI?

1978 – 2002 and Moi

Daniel arap Moi, successor to Jomo (accepted only on the understanding that the Kikuyu politicians would be dominant), set no better example, adopting largely his master’s style of administration and lack of integrity. Jomo and Moi had no respect for the Rule of Law, a central virtue of the constitution giving us independence. Politics ceased to be about policies but instruments of violence (of even honest and nationalist Kikuyus). The popular Tom Mboya, a minister regarded by many as the rightful successor to Jomo was killed. It was widely believed by government agents.

2002-5 Kibaki and the Bomas Draft Constitution

The end of the Cold War and considerable agitation from the younger generation of Kenyans and pressure from West (formerly supporters of corrupt and cruel politicians rulers, here as elsewhere) led to the preparation of a new democratic and fair constitution. There were considerable discussions among the public on the values of the new constitution in which some kind of consensus emerged. But there was little discussion at first among politicians, but in due course, the then opposition parties came around to the idea of moving towards a new constitution. Moi’s party remained scrupulously out of any discussion.

Eventually, a committee of scholars and activists was appointed to undertake the process of wide consultations and to draw a draft of the constitution for consideration of a constituent assembly, consisting of a wide cross-section of Kenyans, in regional and professional terms. After nearly four years of consultations and negotiations, a draft constitution was agreed—and adopted, by the constituent assembly (“Bomas” after its venue, the Bomas of Kenya cultural centre). Its values included: national unity, rule of law, democracy, participation, a wide range of human rights (with special provisions for the marginalised), good governance, integrity, transparency, and accountable development.

Jomo and Moi had no respect for the Rule of Law, a central virtue of the constitution giving us independence. Politics ceased to be about policies but instruments of violence.

Needless to say that it received wide acclamation but not from that eminent Kenyan, Mwai Kibaki. Kibaki provided a very good example of the self-centred Kenyan politician. A senior minister once (in Kenyatta’s time), he had fallen out with President Moi by the time the process for adopting a new democratic constitution.

Initially, Kibaki probably thought that his chance of getting back into power was through the parliamentary system. He and his party (assisted by Kiraitu Murungi) were among the first to make submissions to the Constitution of Kenya Review Commission (CKRC). He urged it to adopt the parliamentary system—even though he had been the beneficiary of presidential system politics under Jomo and Moi. He made a spirited denunciation of what he called “the imperial presidency”. He appeared to stick to this position during much of the Bomas Constitutional Conference process.

Meanwhile the members of Bomas were debating the CKRC proposals – made after intensive consultations with Kenyans of all kinds, throughout the country. The membership of Bomas (officially 629) comprised all the parliamentarians (222), representation of all the districts (chosen by the District Boards), and civil society and professionals (with fair representation of women and people with disability). A broad consensus was emerging in favour of a parliamentary system: with a President having a largely formal role except for minimal powers to counterbalance possible abuses by the government, and a Prime Minister, with the support of Parliament, as head of government.

Kibaki and his team, however, changed tone at this stage and started arguing for the executive presidential system. Having defeated Moi’s chosen successor (Uhuru) in 2002 he had begun to realise the “virtues” of the presidential system that gave him as President so much power.

Kibaki and his team started more or less to boycott Bomas. And rumours suggested that Kibaki and his team were engineering a challenge to the entire Bomas draft – and as Chair a leading lawyer warned me, confidentially, that this was taking the form of a court case, which would go against the Bomas process. I increased the pace of the Bomas discussions, even at the cost of foregoing refinement of the provisions of the draft constitution on devolution.

…Kibaki and his team started arguing for the executive presidential system. Having defeated Moi’s chosen successor (Uhuru) in 2002 had begun to realise the “virtues” of the presidential system that gave him as President so much power.

The remaining Bomas members worked extremely hard, burning the midnight oil, with good discussion, to conclude the agenda and in the presence of a large audience (in addition to the Constitutional Conference members themselves), the draft constitution was adopted in accordance with the prescribed rules, by an overwhelming majority.

The court case and its consequences

Sure enough, a few days later, the High Court decided that there was a fundamental flaw with the whole Bomas process. There were major problems with the litigation. It was started three and a half years after the start of the process, when the draft constitution was nearly done.

The identity of the presiding judge caused a good deal of comment. At the time he was in the running for one of two prominent positions: as head of a new post of a new anti-corruption body, carrying the highest salary in the land, or promotion within the judiciary. After the case he was offered, and accepted, the former, a position essentially in the gift of Kiraitu Murungi who held a senior ministerial post. That judge’s lengthy judgment designed to demonstrate the faults in the procedure of Bomas, was full of references to cases and arguments that had not been raised by the plaintiff.

Bomas was killed thus. This enabled the government to take over the whole process, amend the document to take away the parliamentary system – returning to a largely presidential system. But the government’s butchered version of the constitution was rejected by the people in a referendum – as much motivated by disappointment with the regime as by the detail of the constitution. Nevertheless, no-one in the government mourned this referendum result: it left them with the old, discredited constitution, complete with its imperial presidency.

Returning to the old authoritarian system led to discrimination, ethnicity driven deceits and conflicts. Elections under the old system predictably gave rise to disputes. The 2007 elections were the most critical, with Kibaki and Odinga as the front runners—Odinga the supporter of Bomas constitution and Kibaki favouring the old model. The campaign was organised purely on ethnic lines (Kikuyu versus Luo). The campaigns of Odinga and, especially, Kibaki were conducted largely in their own tribal areas, each carefully avoiding the other’s territory. It is generally accepted that Odinga ran an impressive campaign, supporting the values implicit in the Bomas draft, not narrowing his support to his own tribe, travelling widely.

As the historian Charles Hornsby put it: Odinga personified a popular movement for radical change, while Kibaki was positioned as leader of a reactionary, tribalist, old guard that had mismanaged Kenya in the past. Odinga fought hard for integrity, while Kibaki was suspected of corruption.

Outwardly, it seemed that Odinga was winning by a huge majority, with wide national support, while Kibaki’s support was restricted to Kikuyu, Embu and Meru areas. Odinga’s team had won widely throughout the country. The mode of the counting of votes seemed increasing dubious as the results were announced—or not announced till the last minutes. Gradually Odinga’s huge initial lead over Kibaki started to give way to Kibaki’s lead. In the elections for Parliament, the victory of Odinga’s party, the ODM was overwhelming (presumably the counting was at this level). It was widely believed that Odinga had been cheated of his victory; there was ample evidence to this effect, acknowledged by the head of the electoral body itself. But the false result prevailed.

As historian Hornsby put it: Odinga personified a popular movement for radical change, while Kibaki was positioned as leader of a reactionary, tribalist, old guard that had mismanaged Kenya in the past.

Kenyans were so shocked by the extent of this deceit and it led to the greatest outburst of anger—and, shortly after, violence. As the historian Hornsby noted, “Kenya cracked apart in the worst outbreak of ethnic violence in the country’s history”—ironically in the interests of the candidate who had destroyed the Bomas draft which sought to eliminate ethnic conflict in our country. There was vast destruction of property—and worst, enormous number of killings. Kibaki had succeeded not only in killing Bomas constitution; but in nearly destroying the state of Kenya. Kenyan “leaders” were completely unable to bring the country under control. As a scholar said, “Kenya had seen the increasing use of violence as a political tool and the emergence of mono-ethnic youth militia”.

The county got into a situation in which its leaders could do nothing to bring it to peaceful resolution. African states and the international community had to intervene. An African team led by the former Secretary-General of the UN, Kofi Annan, was convened to bring the county to some order. We had no choice but to be guided by them. Kofi Annan himself advised strongly for the revival of the Bomas Constitution—which the local “leaders” had to accept. For the interim, Annan and his team were able, with great support from Western states, to overcome the resistance of Kibaki to form a coalition government in which Odinga would be the Prime Minister, and Kibaki remaining as the President—and Uhuru Kenyatta as Deputy Prime Minister! The Cabinet was formed by the agreement of Kibaki and Odinga! Meanwhile, discussions proceeded on a permanent constitution, mindful of Kofi Annan’s advice to enact the Bomas draft.

Finalising Bomas

The Bomas draft formed the basis for the work of the Committee of Experts, which was formed to carry forward the constitution project. And the parliamentary system of government – because of its inclusive and ultimately more democratic nature – became again the central proposal, so far as the system of government was concerned. But at the final stage the politicians took over control—and unexpectedly and arbitrarily decided on a presidential rather than a parliamentary system of government. Calculations about who– meaning which individuals – would benefit from which system of government again figured prominently in the reasoning that led to these results. The parliamentary committee had the power to make recommendations, not make decisions. But the Committee of Experts felt, unwisely, that it had to accept what the politicians “recommended” on the questions that touched on political power.

But why rehash this old history? Because history, again, seems to be repeating itself. A system of government established in a constitution is in danger of being radically changed for the benefit of politicians.

2018-20 The Building Bridges Initiative (BBI)

The government (or rather Uhuru and Raila) having created a so-called “Task Force” feel they or we are about to solve our problems.

At first it looked as though their mandate from Uhuru-Raila was broader than who held political power. What seemed to be needed was the fulfilment of the Constitution (which Uhuru and Raila professed to revere). And the Building Bridges Initiative (BBI) Task Force’s report is long and discusses much that touches on other issues. About nine of their proposals need changes to the Constitution; nearly 30 would require changes to ordinary law. Many others are just “let’s do what the law already requires”. The real concerns of our political leaders seem to be revealed by the decision announced at one stage to appoint a group of constitutional experts to assist the Task Force to “fine-tune” the BBI report (though this idea seems to have faded away). The discussion about a “referendum” also lays bare the real concerns. Under our law and Constitution the only situation that requires, or even contemplates, a referendum is constitutional reform. And the constitutional reform that is being focussed on is – and you have noticed it – is on the system of government. In other words, on who gets to hold political power – that political power that it is the sovereign right of the people of Kenya to allocate.

…History, again, seems to be repeating itself. A system of government established in a constitution is in danger of being radically changed for the benefit of politicians.

A reasonably competent team, in the form of the Task Force, listed a large list of constitutional and other violations—but every Kenyan knows these violations and that are mostly perpetrated by the state (including politicians).

Instead of taking any action, the government has extended the life of the Task Force (in the New Year), to educate Kenyans on the problems facing Kenya and how they could be solved.

The outcome of all this is continued feuding among political groups of little significant interest to most Kenyans. The major issue concerns leaders of major tribes as to political, legal arrangements after the end of the present terms of office. And the current solution for our problems is to ensure a prominent, prestigious, post for the major 5 or 6 tribes or more accurately for their leaders (against the terms of the Constitution). What has been canvassed with vigour is the retention of the President, as at present, outside Parliament, one Prime Minister with two deputy prime ministers with, perhaps responsibilities of their own. Raila, having been vocal in support of a full parliamentary system with the Prime Minister as head of government, more recently seems to have shifted to favour the BBI’s Tanzanian model of a weak Prime Minister as a side-kick to the President.

2020 The real problems facing Kenya

In brief, we all know that there are repeated and gross violations of the Constitution. The strength of the current Constitution is clear from Art. 10, especially 10(b) which prescribes national values and principle of governance. Some key provisions are national unity, democracy (including participation of the people, human dignity, equity, social justice, human rights – which include abolition of poverty and protection of the marginalised).

There is massive violation by political parties and the IEBC of electoral laws as well as of provisions on the nature of political parties under the Constitution. Article 91 sets out the rules governing political parties (such as having a national character, promote and uphold national unity; abide by democratic principles). A party cannot be founded on a religious, linguistic, racial, ethnic, gender or regional basis; engage in bribery or other forms of corruption, or use public resources to promote its interests or its candidates in elections.

The outcome of all this is continued feuding among political groups of little significant interest to most Kenyans. The major issue concerns leaders of major tribes as to political, legal arrangements after the end of the present terms of office.

There are massive violations of the Constitution by state agencies, from the office of the President to the lowest public officer. This is now widely acknowledged by President Uhuru and many other state officials.

But, yet again, our politicians have reduced our problems to “their” problems – those who call themselves politicians. The concerns are with who gets into power, not with how that power is used for the people of Kenya, in accordance with the Constitution in which Kenyans have placed so much faith, and into which they put so much effort. Our politics go no further than conflicts between politicians.

Handshake and BBI: Demise of the 2010 Constitution?

My view of Handshake and BBI is very different from what the President and Honourable Odinga claim it is—as creating peace and harmony among us all, moving away from ethnicity; catering to the needs of Kenyans. Perhaps I have become too cynical about politicians to believe that they are ever driven by the desire to help Kenyans—rather than only themselves. But I did work with them for four years, and met party leaders at least once a fortnight to report on and discuss the progress or otherwise of the constitution-making process. I could give you some examples of their selfishness (like claiming expenses for Bomas meetings when they did not attend the sessions—I did recover that in due course, under threat of going public!) and changing their strong position on a constitution proposal without any qualm or embarrassment if they see some advantage in doing so. The crude and embarrassing way they are changing their partners now over the BBI is an example.

…our politicians have reduced our problems to “their” problems – those who call themselves politicians. The concerns are with who gets into power, not with how that power is used for the people of Kenya, in accordance with the Constitution…

Knowing Raila as I have done, I was not surprised at the initiation of BBI. At that time BBI seemed to be a project to ensure the full implementation of the 2010 Constitution. He had identified 9 objectives and values of the Constitution, directly at the welfare of the people, that the Government had not implemented. That was it. This did not surprise me because I knew of his commitment to the welfare of the people. Over the years he has fought for their rights—and had suffered a long period in jail during the regime of Moi, because he fought for a fair administration, which respected the rights of Kenyans. He had been active in politics all his life for this cause. So my expectation was that, together with Uhuru, with his access to state resources and power, the Government would immediately deal with those gaps, particularly the provisions on human rights, and scrupulously and diligently address those issues (an impression I got from the only meeting that I had with their technical team) that the nine areas of the violation of the Constitution would be covered—and we would all be happy thereafter. But this did not happen—clear and simple as this might be, and as the Government is bound by the Constitution to implement them. Instead he and Uhuru set forth on a complex, expensive, and (as it turned out) tortuous path to achieve a long and complex strategy—but strategy for what?

The fault for the misery of millions of Kenyans is surely with Uhuru and his government. It is extraordinary that the powerful President (in office over six years) with control over a huge bureaucracy and resources should say that they need to consult people on their needs. Surely we know, and the President knows, the hardships that the people suffer constantly–in defiance of the  Constitution. What they would like the state do for them was conveyed to CKRC and is reflected in the Constitution, as the President knows well.

I am totally puzzled by his and Raila’s strategy—if this is the objective. I could understand the appointment of a technical team—and several members are indeed well qualified for the job. I assumed that they were to liaise with the relevant ministries, responsible to make good the Nine Deficiencies in the implementation of the Constitution. However, it became clear soon that this was not the intention—the team were advisers to Uhuru and Raila (I should have known from their composition!). Meanwhile I saw little remedial policies from the relevant ministries. Instead shortly later, Uhuru and Raila embarked on a tour of the country, explaining to the people (and to other politicians) the purpose and nature of BBI (by which title the whole project became known). Their entourage was itself of no mean size. It was not clear to me what really was being conveyed to the audiences.

The fault for the misery of millions of Kenyans is surely with Uhuru and his government. It is extraordinary that the powerful President with control over a huge bureaucracy and resources should say that they need to consult people on their needs.

Instead, what worried me most was the enormous expense that this exercise was incurring. It was not clear under what authority the huge sums of money were being expended. In any case funds were running out—until our benefactor, that sharp minded President of the USA, Trump, apparently voted us huge sums of money (gift or loan?). In the end, rumour has it, this became the major source of funds for this exercise—to keep up these tours, with huge audiences but less and less of any meaning.

Meanwhile their advisory team went around the country—with a clear mission. As I understand, they sought the views of ordinary Kenyans as to the hardships they face in everyday life and how their lives could be improved—for which purpose they could have examined people’s submissions to the CKRC as how their lives could be improved as well as the Constitution (particularly the Bill of Rights).

Before long, the focus of the grand BBI project shifted away from the needs of the people to the concerns of politicians—led by Uhuru and Raila and their entourage. At this stage the sharp conflict between two wings of politicians—Uhuru versus Ruto, became fully clear. It seems that Ruto has not given much attention to constitutional reform/change, more to political conflicts. So his clashes with Uhuru lacked reference to what had become constitutional matters of debate. The debate between the two is truly abysmal. Perhaps even Uhuru has lost track of the many amendments to the Constitution proposed by other politicians. The BBI has moved to a new level—of critical amendments to the Constitution—a long way from the politicians’ original apparent concern with fulfilling the Constitution to plans for fundamental changes in its structures. Whether the broad objectives of BBI have been replaced by other considerations or merely a complex system to achieve the same objectives, remains to be seen. We turn to that now.

Proposing Change to the Constitution

If BBI started with strengthening the Constitution, it ended by trying to weaken it. As mentioned earlier, the objective of their amendments was to move away from ethnic pre-occupation/domination of politics and state structures (consistently with the Constitution). Whether their intentions changed is unclear—but you will see.

It seeks to change the Executive and Parliamentary system. The office of the Presidency and the Deputy would remain. There would be posts of Prime Minister and two Deputy Prime Ministers, chosen by the largest party in Parliament. If that party is that of the President, as is likely, it will greatly increase the authority of the President, compared to the current situation (in which the President is already regarded too powerful). A point to note is that the number of key posts for politicians will more likely be 5: from the 5 largest tribes? It is also interesting that the key actors in the BBI are from these 5 tribes!

Before long, the focus of the grand BBI project shifted away from the needs of the people to the concerns of politicians—led by Uhuru and Raila and their entourage. At this stage the sharp conflict between two wings of politicians—Uhuru versus Ruto, came fully clear.

How the system will work is hard to foresee. Certainly not like the parliamentary prime minister—originally so dear to Odinga. In the event that the President and the Prime Minister come from different parties, because the dominant party in Parliament is not that of the President, there could be serious conflicts between two major political parties in the legislature—and more broadly.

There seems to be an assumption that, in order to prevent the rigging of elections, every leader of a major ethnic group should have an important office. This is a strange way to move away from ethnicity to nationhood – and hardly consistent with the sub-title of the BBI Report: “From a nation of blood ties to a nation of ideals”.

Another unsatisfactory proposal is that members of the IEBC should be appointed by political parties. This means giving up on the idea of an independent electoral commission, it assumes a fixed pattern of parties, but Kenyan parties change frequently. It is would almost certainly be unworkable, unstable, and prone to irregularities.

How democratically arrived at these proposals are is evident that the Speaker of Parliament prevented any debate on these proposals—no doubt not to give MPs of Ruto’s school an opportunity to voice their views.

There are various other proposals. One is to reduce the health responsibilities of counties, by establishing a National Health Service Commission to employ medical staff. True there have been counties in which health care has been deplorable. Others have provided a model for the national governments universal health care plans.

Appointing Ministers (a return to the old terminology rather than Cabinet Secretaries taken from the US system when we took their model of government) from Parliament responds to the ambitions of MPs who hate being confined to the role of legislator.

A very revealing proposal is that the person who comes second in the presidential poll should get an automatic seat in Parliament and be Leader of the Opposition. This responds to politicians’ frustration at failing to become president and then not even being an MP. There are various practical problems. First, the balance of parties in the National Assembly would be affected by the introduction of a member of a party who was not elected (a minor point unless numbers of MPs was very close for the two top parties/groups). But suppose the runner up in the presidential election is actually from the largest party in the National Assembly? It’s not impossible. What happens? The presidential runner up is both PM and leader of the opposition? Surely not. People from the same party are PM and Leader of the Opposition? Ludicrous.

A very revealing proposal is that the person who comes second in the presidential poll should get an automatic seat in Parliament and be Leader of the Opposition. This responds to politicians’ frustration at failing to become president and then not even being an MP.

Part of the problem is that the BBI recommended two solutions from similar problems – the sense of exclusion of the narrowly defeated.

I do not think that all the proposals have no merit. I think that a distinct status for Nairobi City as the capital of the country is not a bad proposal. It was actually recommended in the CKRC and Bomas drafts – but without details, these being left to an Act of Parliament.

But this and all the other ideas need very careful consideration, not the half-baked discussion in this report.

Need for a process

Whenever a constitution is to be considered for amendment there is need for a very thorough process. We would need much more detailed public participation, published proposals, giving Kenyans ample time to examine and discuss them. We would need national discussions, observing the best practices of public participation. In other words, something much more like the CKRC process, not this amateurish effort of a process and mishmash of proposals.

The whole process so far shows the tendency of politicians to mess around with the Constitution to their own benefit.

Raila Odinga has suffered for democracy in this country. He achieved a wider degree of public support, less pegged to ethnicity, than any other Kenyan politician in a democratic context. He has genuinely believed in ideologies and policies.

But is this where he would want to end his distinguished career in a shoddy and clumsy process, designed for the benefit of himself and a few others and for the exclusion of others?

I want to acknowledge gratefully Jill Cottrell Ghai’s assistance in this article.

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