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BLACK, RED AND GREEN: The story behind the Kenyan flag

The history of Kenya’s flag reflects the messy tale of the country’s struggle for independence as well as the unresolved contradictions and disputes that continue to haunt the nation. By PATRICK GATHARA

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BLACK, RED AND GREEN: The story behind the Kenyan flag
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Fifty-five years ago, on July 26, 1963, the national flag of the soon to be newly independent state of Kenya was unveiled. The standard was typical of the country that had created it – cobbled together by an elite but imbued with pretensions at unity and forging common cause with common folk.

In those heady days, as Kenya geared up to party, one could be forgiven for ignoring the tensions bubbling underneath. The country was in transition and the previous two years had been marked by political crisis, brinkmanship and even threats of war and secession. As described in 1964 by Guardian journalist Clyde Sanger and former official in the Kenyan colonial administration, John Nottingham, “During this period Kenya first experienced six weeks when neither [of the two major political parties, the Kenya African National Union or the Kenya African Democratic Union] would form a government and [Governor Patrick Renison] told visitors he was prepared to rule by decree; 10 months in which K.A.D.U., with backing from Michael Blundell’s New Kenya Party and Arvind Jamidar’s Kenya Indian Congress, carried on a minority government sustained by more than a dozen nominated members; and a year in which K.A.N.U. and K.A.D.U. uneasily joined in a coalition which was as full of frustrations as it was of intrigues. The politics of nation-building could not even begin until K.A.N.U. had fought and won a straight democratic election”.

Today, the messy story of Kenya’s struggle for independence has largely been swept under the symbolism of the flag, yet the contradictions and disputes that gave rise to it continue to haunt the nation as they were never fully resolved. The tale of the flag itself is a manifestation of these issues.

Symbolism

Historically, flags were linked to conflict. “The primordial rag dipped in the blood of a conquered enemy and lifted high on a stick – that wordless shout of victory and dominion – is a motif repeated millions of times in human existence,” wrote Whitney Smith in his book Flags Through the Ages and Across the World. Modern flags evolved out of the battle standards carried into war by ancient armies and “were almost certainly the invention of the ancient peoples of the Indian subcontinent or what is now China” according to the Encyclopedia Britannica.

Today, the messy story of Kenya’s struggle for independence has largely been swept under the symbolism of the flag, yet the contradictions and disputes that gave rise to it continue to haunt the nation as they were never fully resolved. The tale of the flag itself is a manifestation of these issues.

In battle, flags were both symbolic and practical. They provided mobile rallying points for soldiers engaged in combat, could be used to signify victory or even, in plain white form, a truce or surrender. In the days before radio communications, they were also ways of communicating across vast distances, especially by sailors. In the modern age, they are still carry powerful symbolic significance. “Show me the race or the nation without a flag, and I will show you a race of people without any pride,” Marcus Garvey was reported to have declared in 1921.

On the African continent, almost all the current national flags were created in the years following the Second World War and in the run-up to the demise of colonialism. Many still bear hallmarks of that colonial past. According to the Encyclopedia Britannica, the ensigns of countries that had a common colonial past “bear strong family resemblances to one another”. It distinguishes two major categories: those former French colonies which “tend to have vertical tricolours and are generally green-yellow-red” and those of the Anglophone which “have horizontal tricolours and often include green, blue, black, and white.”

The colours

Kenya’s standard also carries this history. It can be traced directly to that of the Kenya African Union, which was founded in 1942 under the name Kenya African Study Union, with Harry Thuku as its president. The flag of the KAU (the word “Study” was dropped in 1946) adopted the Pan-African colours pioneered by Garvey’s Universal Negro Improvement Association and African Communities League 25 years before – red, black and green, which respectively represented the blood that unites all people of Black African ancestry and which was shed for liberation; the race of black people as a nation; and the natural wealth of Africa. (It must be noted, though, that some have suggested that when Garvey proposed the colours, he meant the latter two to reflect sympathy for the “Reds of the world” as well as the Irish struggle for freedom.)

However, when originally introduced on September 3, 1951, according to the Encyclopedia Britannica, KAU’s flag was only black and red with a central shield and arrow. The following year, the background was altered to three equal horizontal stripes of black, red and green with a white central emblem consisting of a shield and crossed spear and arrow, together with the initials “KAU”. At the time the black stood for the indigenous population, red for the common blood of all humanity, green symbolised the nation’s fertile land while the shield and weapons were a reminder that organised struggle was the basis for future self-government.

Jomo Kenyatta took over the presidency of KAU from James Gichuru in 1947. Five years later, as reported by Karari wa Njama, a Mau Mau veteran and alumnus of Alliance High School, in the book Mau Mau from Within, Kenyatta’s explanation of the significance of the KAU flag had changed. “What he said must mean that our fertile lands (green) could only be regained by the blood (red) of the African (black). That was it! The black was separated from the green by the red: The African could only get to his land through blood.”

Kenyatta was speaking in Nyeri as the Mau Mau uprising was gathering steam. Though billed as a KAU meeting, Karari says that “most of the organisers of the meeting were Mau Mau leaders and most of the crowd Mau Mau members.

“What he said must mean that our fertile lands (green) could only be regained by the blood (red) of the African (black). That was it! The black was separated from the green by the red: The African could only get to his land through blood.”

Yet Kenyatta himself had little to do with the Mau Mau. On the contrary, he consistently denied any involvement with them and is, in fact, reported – on the same day – as having distinguished the KAU from the uprising and having disavowed the use of violence. “He who calls us the Mau Mau is not truthful. We do not know this thing Mau Mau…K.A.U. is not a fighting union that uses fists and weapons. If any of you here think that force is good, I do not agree with you: remember the old saying that he who is hit with a rungu returns, but he who is hit with justice never comes back. I do not want people to accuse us falsely – that we steal and that we are Mau Mau.”

However, Karari’s recollection is important given that the red in the Kenyan flag would later be claimed to reflect “the blood that was shed in the fight for independence”.

By 1956, the Mau Mau revolt had been brutally quashed and gradually the restrictions on political organisation were eased. In 1960, the eight-year State of Emergency was lifted and the ban on colony-wide African political parties relaxed. KANU was founded on May 14 of that year and, as Charles Hornsby writes in his book Kenya: A History Since Independence, “its name, black, red and green flag and symbols were chosen as a direct successor to those of KAU”. At some point, the cockerel and battle axe were introduced as symbols of the party. A month later, on June 25, KADU was formed. John Kamau, an Associate Editor with the Daily Nation has written that the “Kanu and Kadu flags were similar in design. Both had three horizontal bands and two similar colours, black and green. The difference was only in the third colour, red for Kanu and white for Kadu.”

KANU was dominated by the large agricultural communities – the Kikuyu and Luo – while KADU represented smaller, mostly pastoral ones, which feared domination. KANU won the 1961 election but refused to form a government before Kenyatta, who had been detained in 1952, was released. KADU, after extracting some concessions from the British, which included building Kenyatta a house in Gatundu and moving him there, formed a minority government with its head, Ronald Ngala, as Leader of Government Business and later as Chief Minister.

Majimboism

It was only in September, after it had been in power for five months, that KADU begun to foster an issue that would come to define the conflict between the two parties. KADU espoused Majimbo, or regionalism, in opposition to KANU’s preference for a highly centralised post-independence state. KADU was egged on by the white colonial establishment to adopt this stand.

As explained by Sanger and Nottingham:

“Majimbo’s origins should be traced further back, to Federal Independence Party formed in 1954 by white farmers, who saw that political control would one day pass into African hands and wanted to seal off the ‘White Highlands’ from an African central government and save the great wealth of the Highlands for those considered had been solely responsible for developing it.

“Indeed, regionalism really goes much further back than this. Elspeth Huxley recalls that the F.I.P. was only proposing to ‘develop the “white island” idea … to carve out a small territory, about the size of Wales, comprising present areas of the Highlands. In this area they would exercise self-government; so would the Africans in other areas; and Kenya would become a federation of three or four smallish states, in only one of which would the colonists have political control. Here they would entrench themselves.’”

It is interesting that devolution, which is rooted in the Majimbo debates, has become a pillar of the 2010 constitution. Many Kenyans do not realise just how much current political debates are a reflection of much older, and not always innocent, proposals.

KANU, in opposition, was vociferously opposed to Majimbo, which it saw as entrenching tribalism. And by the second Lancaster House Constitutional Conference, which lasted from February to April 1962, both sides seemed, at least rhetorically, firmly entrenched in their positions.

It is interesting that devolution, which is rooted in the Majimbo debates, has become a pillar of the 2010 constitution. Many Kenyans do not realise just how much current political debates are a reflection of much older, and not always innocent, proposals.

But it was mostly for show. As Prof. Robert Manners wrote at the time, “The contesting parties are less divided by issues, programs, and even concepts of political structure than they are by competing personal ambitions.” He added that he had spoken to several within the KADU camp, including two front benchers, who told him that they were not really afraid of KANU domination but rather, were cynically hyping up fears for personal benefit. “In short, it is fairly certain that KADU’s leadership does not share the ‘tribal’ fears they have helped to arouse in their followers. They have employed some ancient anxieties and provoked a number of new ones with the apparently calculated intent of prolonging in some measure and for some time the freakish position of power with which they were endowed when KANU refused, in April 1961, to form a government.” Sound familiar?

Regardless, the outcome of the conference was a coalition government led by both Ngala, the Minister of State for Constitutional Affairs with special responsibility for administration, and Kenyatta, who had since been released and was now the Minister of State for Constitutional Affairs with special responsibility for economic planning and development. Each declared victory.

This “nusu mkate” government was a fractious affair from which Kenyatta’s Number Two in KANU had been excluded at the insistence of the Colonial Office. In his book, Not Yet Uhuru, Oginga Odinga speculated that “Governor Renison persuaded the Colonial office that my visits to Socialist countries made me unfit to take Cabinet office”. He was also aware of “behind-the-scenes discussions in London in which some Kanu men hinted that I would be unacceptable not only to Kadu but even to some groups in Kanu”.

Still, the coalition held till the elections in 1963, which KANU again won handily and this time they got to form the government, with Kenyatta as Prime Minister. In June, Kenya attained self-government and arrangements for independence began in earnest. Among the issues that would need to be settled was the question of a political union with neighbouring Uganda and Tanzania. As late as July, the idea of an East African Federation was still being taken seriously.

East African Federation debate

A month before, on July 5, Kenyatta and his Ugandan and Tanganyikan counterparts, Milton Obote and Julius Nyerere, had issued the Declaration of Federation, in which they committed to establishing a political federation by the end of the year. This was another idea with a long history, pioneered by the white colonial settler establishment who, as far back as the 1920s, were ready to establish a federal capital in Nairobi in order to reduce the influence of London in the region.

The region was already tied together by a network of more than 40 different East African institutions covering areas such as research, social services, education/training and defence. As Nyerere had observed in March, “A federation of at least Kenya, Uganda and Tanganyika should be comparatively easy to achieve. We already have a common market, and run many services through the Common Services Organisation…This is the nucleus from which a federation is the natural growth.”

When the issue came up for debate in the UK’s House of Lords on July 15, Francis Twining warned of the difficulties of federation since it involved the loss of sovereignty which “these new countries value … above all else. They jealously prize their status symbols, such as national flags and national anthems”.

And, as Nyerere himself would admit 34 years later, flags and other national symbols, rather than tools to rally unity, had become tools of personal aggrandisement and actually stood in the way of such unity. “Once you multiply national anthems, national flags and national passports, seats at the United Nations, and individuals entitled to 21 guns salute, not to speak of a host of ministers, prime ministers, and envoys, you have a whole army of powerful people with vested interests in keeping Africa balkanised.” Across the continent, attempts at political federation met quick deaths.

And, as Nyerere himself would admit 34 years later, flags and other national symbols, rather than tools to rally unity, had become tools of personal aggrandisement and actually stood in the way of such unity.

As Kenya moved towards independence, some within Kenyatta’s circle wanted to use the KANU flag as the national flag. This was not without precedent. As Tom Mboya, the brilliant young Justice and Constitutional minister, noted, “It is not without significance that our neighbours, Tanganyika and Uganda, both saw it fit to use the ruling party flag simply as a basis for the national flag.”

However, Mboya cautioned against simply adopting the KANU flag, warning that it would further polarise the country. He managed to convince Kenyatta, who formed a small committee chaired by Dawson Mwanyumba, the Minister for Works, Communication and Power, to come up with the national colours. Doing so was not difficult because he was not really looking for national colours but rather a political compromise everyone could live with. So he did the obvious thing and combined the colours of the KANU and KADU flag by introducing the white fimbriation. The flag retained and updated the elements of the KAU flag, such as the shield and spears. The KANU cockerel and axe were omitted from the flag but made it onto the coat of arms.

When the flag was shown to the cabinet, the meaning of the red colour matched what Karari had understood Kenyatta to say over a decade before. Rather than simply including KADU, the white fimbriation was said to symbolise a multiracial society but the cabinet changed it to “peace”, perhaps a sign that while racial minorities would be tolerated in the new Kenya, their integration was not necessarily on the agenda.

Talks of secession

But there were other issues related to minorities to be settled. In the northeast, the Somali population was in open revolt. A 1962 survey had found that 85 percent of Somalis preferred to join Somalia. However, in March 1963, Duncan Sandys, the Colonial Secretary, under pressure from Kenyan ministers, supported a Kenyan future for them. This sparked mass protests, an election boycott, calls for armed secession and attacks on government facilities. By November, the so-called Shifta war was raging, with audacious attacks by rebels armed and trained by Somalia.

In Nairobi, Mboya pushed an amendment to the National Flag, Emblems and Names Act to outlaw the display of flags purporting to represent Kenya or a part thereof. This was meant to stop the Somalis flying the Somalia flag in the Northern Frontier District. But it also had other targets.

At the third and final Lancaster House Constitutional Conference, held between late September and mid-October 1963, tensions were so high that KADU leaders Ngala and Daniel arap Moi, who had been elected President of the Rift Valley Region, threatened to secede from Kenya, with Moi releasing a partition map and threatening a unilateral declaration of independence. (Again, sound familiar?) There were even suspicions of an alliance with the Somalis in the NFD, which were fueled by a cable from Jean Seroney, at the London talks, to Moi: “Dishonourable betrayal of majimbo agreement by Britishers. Alert Kalenjin and region and Kadu to expect and prepare for worst. Partition and operation Somalia only hope.”

Mboya’s motion was thus not just aimed at the Somalis; the threats of secession by KADU regions had to be put down and one way was to deny them the right to fly flags purporting to represent an autonomous, or even independent, part of Kenya. Local councils, though, like the Nairobi City Council, were allowed to have their own flags.

There would be more drama surrounding the flag on independence day. The symbolism of lowering the Union Jack at midnight right before the Kenyan flag went up was profoundly discomfitting to the British. They determined that their flag would not be raised for the event after it had been lowered, as was customary, at 6pm. Kenyatta, who by now was their reliable lackey, was happy to go with it but when he presented the plan to the Cabinet, it was shot down, largely thanks to Mboya. So another plan was hatched with Arthur Horner, the former Permanent Secretary in the Ministry of Works and then the head of the Independence Celebrations Directorate (the body charged with organising the event), who secretly ordered to put out the lights as the British standard came down and switch them back on as the Kenyan flag was raised. It was a ploy the Brits had pulled before, in both Uganda and Tanganyika.

On 30th July, just a few days after the national flag had been introduced, Kenyatta had given a ministerial statement on the independence day celebrations in which he bemoaned the people’s penchant to fly party flags wherever and whenever they desired, declaring it illegal. The national flag, he declared, would only be flown by “Cabinet Ministers and other authorised persons” and its reproduction, along with that of Kenyatta’s own portrait, would be strictly controlled. In this way, under the guise of honouring it, the flag was shielded from the masses and reserved for the glorification of the ruling elite. The flag, and the state it stood for, became the property of a few, not of all Kenyans.

After independence, this “protection” of the flag from the people, who were deemed too unclean to handle it, continued with frequent debates in Parliament about who could and who couldn’t fly it. Under Jomo Kenyatta’s successors, the law and the policy has remained largely unchallenged.

Reclaiming the flag

But the last two decades have seen the beginnings of a popular movement to claim the Kenyan flag. It has become ever more present in Kenyans’ lives – from activists like Njonjo Mue, who in 2004 scaled the walls of Parliament and ripped the flag off a cabinet minister’s car as a way of demonstrating the government’s loss of moral authority to govern, and who more recently has been charged with flying the flag on his own car, to the many Kenyans brandishing it during public rallies and sporting events (it even famously made an appearance at the World Cup) it seems that, as Kenyatta feared 55 years ago, “every Tom, Dick and Harry” is flying it. He must be turning in his mausoleum. Good.

After independence, this “protection” of the flag from the people, who were deemed too unclean to handle it, continued with frequent debates in Parliament about who could and who couldn’t fly it. Under Jomo Kenyatta’s successors, the law and the policy has remained largely unchallenged.

However, besides reclaiming the use of the flag, Kenyans need to also consider what it means today. If it is not to be a tool of personal aggrandisement or unthinking and enforced veneration of the state, then what should it be used for? Who or what does it represent?

In the years since independence, it has been a symbol, not of Kenyans and their struggles against oppression, but of Kenya and the power it continues to be wielded against them. The rituals associated with the flag and other symbols such as the national anthem, both reinforce and, paradoxically, disguise this. It is clear in the common statement that “Kenya is greater than any one of us” which at once distinguishes Kenya from Kenyans while also proclaiming the myth that the state is something more than a largely self-serving political arrangement between elites competing for power and prestige. Kenya, we are rather told, is a divinely-ordained an eternally established ordering of Kenyans to which we all owe allegiance and subservience. It recalls a time in my childhood when I was informed that suicide was illegal because it deprived the state of taxes, as if Kenyans were made for Kenya and not the other way around.

In the week where we mark the anniversary of Kenyatta’s “Tom, Dick and Harry” statement to the House of Representatives, perhaps we could all take some time to remember all the history – good and bad – that the flag represents, as well as reflect on what else it could stand for.

We can choose, and many are choosing, to reinterpret its design and colours to suit, not the ambitions and egos of politicians, but the realities and aspirations of ordinary Kenyans. As it did for Karari wa Njama all those years ago, it should today serve as a reminder of the need to continue the struggle to free ourselves from the existing colonially-inspired order – that despite 55 years of independence, the black is still separated from the green.

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Mr. Gathara is a social and political commentator and cartoonist based in Nairobi.

Politics

State Capture: Why Kenya Has Been Unable to Slay the Corruption Dragon

In this four-part series, WACHIRA MAINA explains how “state capture elites” have undermined anti-corruption efforts and why, despite decades of reforms and numerous commissions of inquiry, corruption remains an enduring element of Kenyan politics and society.

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State Capture: Why Kenya Has Been Unable to Slay the Corruption Dragon
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Corruption has been a persistent problem in Kenya since before independence but it has flourished and put down robust roots since the country’s return to multiparty politics in 1992. With more democratisation, the government’s infirmity in fighting corruption has also grown proportionately.

The cost of corruption to Kenya is a much-debated figure, but some experts say it is up to 1 per cent of GDP per year. Corruption cases are routinely reported in the press, in the Auditor General’s reports and to the Ethics and Anti-Corruption Commission (EACC) but these are rarely fully investigated let alone resolved satisfactorily.

Commissions of inquiry, such as the Inquiry into the Goldenberg Affair, the Inquiry into Illegal and Irregular Allocation of Public Land, and the Gicheru Commission of Inquiry into Robert Ouko’s death, have achieved little. Even where a commission proposes extensive reforms – as the Inquiry into Illegal and Irregular Allocation of Public Land did – these are implemented in a patchy manner, seemingly “triaged” to exonerate the powerful or to punish their enemies.

Key sectors of the economy – food, land and oil, for example – are vulnerable to periodic heists and systematic mendacity and cover-ups. Reports of investigations done by committees of Parliament, such as the Musikari Kombo list of shame, are either totally rejected or doctored before they are laid before the House, ensuring that no action is ever taken.

Prosecutions fare no better: small fish are nabbed, big fish never. Even where, uncommonly, an indictment is followed by a conviction, the stolen money is rarely recovered. In the handful of cases where monies have been returned, it is usually from lowly officials. In some exceptional cases, the bigwigs will make secret “sweetheart deals” in which they return some token assets but get to keep the greater loot. All this motion without movement is possible because corruption is deeply embedded in politics, which it both funds and subverts.

As the report of the Task Force on Public Collections or Harambees 2003 clearly showed, politicians are the largest donors to so-called charitable causes (churches, schools, higher education and funerals are firm favourites) to which they give fortunes that are many times more than their known legitimate incomes. Such charity is, in truth, a bait-and-switch ploy – once institutions buckle to the lure of corruption money, the corrupt buy absolution and are free to reach deeper into public coffers. The Task Force on Public Collections or Harambees 2003 revealed how intimately corruption is linked to politics. Laws were amended to stop civil servants from getting involved in fund-raising activities. By 2010, however, the law was being honoured more in the breach than in the observance.

Why reforms fail

Reforms come in unsustainable spurts, usually after an election, as in 2003, or in a moment of fiscal crisis, as in 2013 just before Kenya went to the market to issue its first Eurobond. In 2002, in the early phase of the Mwai Kibaki administration, there was frantic action that, for a moment, seemed to herald a fresh beginning in the fight against graft. The national mood was optimistic, exultant and supportive. One thousand procurement officers were suspended after an audit showed widespread irregularities.

Between 2003 and 2007 a raft of new laws were made, buttressing a new set of anti-corruption institutions. Commissions of inquiry and task forces were set up to investigate past scandals and propose additional reforms. These were expectant times: in a 2003 Gallup International survey of more than 67,500 people in 65 countries, Kenyans were ranked the most optimistic people in the world. This result was not a response to any of these reforms, merely the after-glow of the fall of the Daniel arap Moi autocracy. What it says, though, is that the government was riding on a huge wave of a popular “feel-good” moment and legitimacy.

As the report of the Task Force on Public Collections or Harambees 2003 clearly showed, politicians are the largest donors to so-called charitable causes…to which they give fortunes that are many times more than their known legitimate incomes. Such charity is, in truth, a bait-and-switch ploy – once institutions buckle to the lure of corruption money, the corrupt buy absolution and are free to reach deeper into public coffers.

It didn’t last. The laws were no sooner enacted than they were ignored. Task forces and commissions completed their tasks but nothing happened. Notwithstanding the baleful effect of the Goldenberg scandal on the national economy, the commission of inquiry into the scandal, led by Justice Bosire, was irresolute in its recommendations, most of which called for further investigations. The Bosire Commission had been tasked with investigating major financial fraud in the early 1990s involving a company called Goldenberg Ltd. and the Central Bank of Kenya (CBK), in which the CBK and the local banking sector made losses of over $1 billion.

The report of the Kiruki Commission (2006) on the activities of the notorious Artur Brothers never even saw the light of day. The two brothers had been involved in a series of high-profile criminal activities and security breaches in collusion with highly placed Kenyan officials, which included a raid on the premises of the Standard Media Group.

As under the Moi regime, the much-loved commissions of inquiry have proved to be exceptionally weak instruments against graft. Few real changes have come out of the more than 30 commissions of inquiry Kenya has had in a century. And yet taxpayers invest millions in these commissions, expecting a real return by way of official integrity. As one AfriCOG report notes:

The Goldenberg Commission cost Kshs 503 million of which Kshs 200 million was spent on operations and Kshs 303 million on allowances. The Ndung’u Commission cost Kshs 78 million of which Kshs 7.4 million went to operations and Kshs 70.7 million was paid out as allowances. The Kiruki Commission cost Kshs 19.97 million of which Kshs 13.37 was paid out in allowances and Kshs 6.6 million went to operations.

Yet despite all these efforts, President Kibaki failed to actually reduce corruption. Instead, barely a year into the Kibaki presidency, in 2004, the still unresolved Anglo Leasing scandal broke out. By the mid-point of President Kibaki’s first term, most Kenyans had given up hope that corruption could be meaningfully tackled. To date, that has not changed.

The widespread nature of corruption means that Kenya routinely performs very poorly in international and local measures of corruption, integrity and good governance. Since the Transparency International (TI) Corruption Perceptions Index was launched in 1995, Kenya has invariably been in the bottom half of the countries surveyed. Sometimes, the country records some improvement on particular indicators, such as the World Bank’s Government Effectiveness and Doing Business surveys, but generally it soon slips back to its bad ways, or just stagnates. Locally, corruption surveys by TI’s national chapter report widespread bribery. Some institutions, such as the police, land registries and county licencing services, have been reported to have been notoriously predatory.

Thus, a generation of reforms has not dented the corruption edifice or undone its rhizome-like penetration into the body politic in Kenya. Mostly, the government has embraced appearances of reform, rather than the fact of reform and this is so because deep reforms would loosen the ruling elite’s grip on power and severely subvert politics as it is played in Kenya.

State capture 

What is at play in Kenya is “state capture” – defined as a political project in which a well-organised elite network constructs a symbiotic relationship between the constitutional state and a parallel shadow state for its own benefit. As defined by Catrina Godinho and Lauren Hermanus, state capture is “. . . a political-economic project whereby public and private actors collude in establishing clandestine networks that cluster around state institutions in order to accumulate unchecked power, subverting the constitutional state and social contract by operating outside of the realm of public accountability.” 

If capture is successful, “state institutions, governance, and functions are repurposed and re-engineered over time”, and the constitutional state sheds many of its substantive, but not formal, democratic features and becomes increasingly autocratic, at least in the ways in which power is exercised de facto”.

What is at play in Kenya is “state capture” – defined as a political project in which a well-organised elite network constructs a symbiotic relationship between the constitutional state and a parallel shadow state for its own benefit.

The success of state capture, therefore, rests on the ability of a small group of powerful and rich operatives to take over and pervert the institutions of democracy while keeping the façade of a functioning democracy. Thus, oversight institutions are weakened; law enforcement is partisan and in the pockets of politicians; civic space is asphyxiated; free elections are frustrated and are typically won by the most violent or the most corrupt, or those who are both violent and corrupt; arrests and indictments are often precursors of inaction, not proof of official will to fight corruption.

Essential to state capture is the existence of a crooked, conniving and reciprocal relationship between certain types of businesses and politicians. State capture creates a two-government country: there is an elected government, and there is a shadow government, a state within a state. Capture networks radiate, web-like, from two centres: the Presidency, where the power is concentrated, and the Treasury, where money management is centralised.

Successful state capture networks in Kenya have had two elements. On the bureaucratic side, there is usually a coterie of favoured officials who are allowed to accumulate, concentrate and exercise power in completely unaccountable ways, often behind the shield of presidential privilege, state security or defence procurement. On the business side, there is often a clique of local businessmen allied to political insiders, or alternatively, the favoured groups are shadowy international companies whose shareholders are usually unknown. Capturing and controlling the Presidency, the source of power, and the Treasury, the source of money, is essential to fashioning the “criminal web” necessary to repurpose government for the benefit of rent-seeking elites.

This state capture perspective therefore requires us to see the state elite not as a government at all, but as a vertically integrated criminal organisation that operates in the shadow of the constitutional state. Taking that view, even political rivals are allies who co-exist uneasily, not principally, for the purpose of exercising the functions of the state in the abstract, but primarily and concretely for extracting resources for personal gain. Given its private objectives, the state, seen this way, has no interest in public purposes, such as development, education or health.

This perspective also questions the idea that the Kenyan state is recognisable as such, suggesting instead that institutions are run as noxious, corrupt, criminal fiefdoms. The government, from the presidency to the police, is privatised, with criminal elements operating under unofficial licence from civil authority. The appropriate way to think of the authorities is as organised criminals who have perverted state institutions to maximise predation.

Governance as a “front activity”

Why has state capture been so stable in Kenya, even seemingly able to transition through elections? Well, because the capture elites are not self-annihilating and an unstated rule of capture is that successor regimes will not disturb their predecessors. As John of Salisbury wrote in Policratius:

The raven rejoices in the work of the wolf, and the unjust judge applauds the minister of injustice…in lands whose princes are infidels and companions of thieves; they hasten to embrace those whose misdeeds they observe, thus adding their own share of iniquity in the hope that they may gain for themselves some portion of the spoil.

In this sort of state, governing is really “just a front activity” and to that extent the state is only failing at being a state but is otherwise remarkably effective in achieving its objective, which is to further enrich the state capture elite.

To be able to transition capture across elections, from one regime to another – as Kenya did in 2002 and again in 2013 and 2017 – involves repurposing politics so as to limit the political agency of citizens. To do this successfully, democracy has to be reframed in purely formal and procedural terms. The political class is then able to use the democratic process, especially elections, to frustrate what Michael Johnston calls “deep democratization”. Deep democratization, as opposed to procedural democracy, is:

[The] process whereby citizens become able to defend themselves and their interests by political means. It is “democratization”, not in the sense of establishing formal democratic institutions for their own sake, but rather in the sense of broadening the range of people and groups with some say about the ways power and wealth should—and should not—be pursued, used and exchanged. 

In this way, the procedural elements of democracy are used to hollow out its substantive commitments whilst keeping the diplomatic respectability that is conferred by regular elections.

In addition to sequestering democratic concepts for private use in this way, political elites also appropriate moral language and social norms to “conventionalise” corruption, fashioning a vocabulary that removes the moral sting and opprobrium from corruption and its various forms. Corruption is “traditionalised” and reframed as gift-giving or a form of socially recognisable reciprocity.

Why has state capture been so stable in Kenya, even seemingly able to transition through elections? Well, because the capture elites are not self-annihilating and an unstated rule of capture is that successor regimes will not disturb their predecessors.

Corrupt practices are then expressed in the language of moral obligation. No moral wrong is involved when an official or politician from one’s village violates conflict of interest rules or other laws to provide some benefit or to pull strings on behalf of kin and friends of friends. Once a moral bond is accepted as legitimate, a civil servant or politician cannot refuse to profit from “juicy” postings that might benefit him and his people or fail to “spread the benefit around” to his relatives. In this way, the state capture elite syncretically amalgamates traditional practices of gift-giving and reciprocity with their own corrupt and predatory practices that are based on smash and grab and a dollop of tokenism for friends and relatives.

This combination of a democracy drained of substance and communal mores, which are purloined to give social legitimacy to vice, erodes democracy’s emancipatory power and robs the public of the moral resources they need to confront bad governance. As George Steiner points out, political falsehood of this magnitude cuts language from its roots in “moral and emotional life” so that it becomes “ossified with clichés, unexamined definitions, and left-over words”. According to Steiner, this “anaesthetizing” drains “the life-force of the language” and dissolves the society’s moral and political values. Indeed, language is in a parlous condition when the bribe a judge takes to free a dangerous criminal is named chai, like a nice cuppa tea between intimates.

Seeing corruption as a problem of state capture solves many of the persistent puzzles of anti-corruption reform in Kenya. Why do the emblematic corruption cases, such as the Goldenberg, Anglo Leasing or Eurobond scandals, never get resolved even though they never really die? Because they are not meant to be resolved; to resolve them would undo the “implicit transition bargain” of Kenyan politics that successors will not harm the interests of their predecessors. And yet, these emblematic cases cannot really be allowed to die because that would expose the capture racket. Therefore, such cases are kept interminably in the public eye, partly as evidence that “action is live” and partly as a fig leaf to keep the machinery of larceny functioning under cover.

This combination of a democracy drained of substance and communal mores, which are purloined to give social legitimacy to vice, erodes democracy’s emancipatory power and robs the public of the moral resources they need to confront bad governance.

Goldenberg and other post-1992 state capture scandals marked a watershed in corruption politics, that is, “a shift from a politics of state-led control” to “a politics of competitive aggression, the principal victim of which has been the state itself”, says Dominic Burbidge. In this dispensation, politics “has become a pursuit of ever faster forms of enrichment”. These scandals challenge both the theory of democratic consolidation and the supposed “curative” effects of democracy on political corruption.

Kenya under democracy has transformed from a moderately corrupt society to a pervasively corrupt society, and corruption has moved stepwise from “petty or bureaucratic” to “grand or political” and, eventually, to state capture.

This is Part 1 of an abridged version of State Capture: Inside Kenya’s Inability to Fight Corruption, a report published by the Africa Centre for Open Governance (AfriCOG) in May 2019.

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The Chinese Babies of Mathare and Other Love Stories

Large China-funded infrastructure projects in Kenya have led to an influx of Chinese male migrants, who have not just changed the landscape of the country, but who have also found love – and had children – in the most unlikely places. DAUTI KAHURA reports on the “Chikuyu” phenomenon.

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In the sprawling congested tenements of Kiamaiko, just behind Jonsaga area in Huruma, Nyawira (not her real name) used to be the gossip of her flatmates for the longest time. She was married to a Chinese man who had come to the country as a road construction worker in the mid-2000.

“I used to sell edibles to the Chinese workers, who had begun constructing Thika Road and that’s how we met,” said Nyawira somewhat nostalgically, remembering those days that she daily interacted with the Chinese. “It was my first time to meet with the Chinese people – they spoke neither English nor Kiswahili and I didn’t speak their language Mandarin. But they needed to eat and I needed to sell food. It is the story of how human beings can overcome imagined obstacles in order to relate.”

By the time the Thika superhighway was nearing completion, Nyawira and her Chinese friend were an item. They had even moved together in Kiamaiko and today their 12-year-old son is a testament to that liaison.

But the romance did not last long. “A couple of years back, he told me he had to head back home for some urgent matter I have not seen him since,” explained Nyawira.

In Nyawira’s neighbourhood, there are two Chinese men who share a one-bedroomed house. “The two men are my water clients,” said Zangi, one of the water vendors that supply water in 20-litre jerricans to Kiamaiko’s residents. “These Chinese have adapted to the local situation, they are just like our people.”

At Eastlands Hotel on Ring Road Kilimani, a wholly Chinese-owned deluxe hotel for Chinese tourists who cannot afford to stay at the city’s high-end hotels, I met Wamaitha (not her real name), an ordinarily very talkative and outgoing person, but only when her Chinese husband is not around. A consummate businesswoman, she met her Chinese mate at a business convention. She is in her early 30s, and her tummy is already showing a noticeable bump – a telltale sign that soon she will be expecting a baby. “My husband is also a businessman, dealing in precious stones,” said Wamaitha, who is from Kerugoya in Kirinyaga County.

To date, the most famous of these Chinese marriages has been that of Liang Yongyu and his 29-year-old wife, Karen Ngunjiri, who married recently. It became a public matter when an unknown fellow who must have attended the wedding uploaded their exclusive marriage ceremony video (the couple says they don’t know who did it) that went viral. Ngunjiri said her wedding to a Chinese man really excited Kenyans for reasons she cannot quite fathom.

Nyawira’s and Wamaitha’s inter-racial relationship stories with the Chinese is the story of diversity of the Chinese people who come to Kenya: from the construction worker to the polished entrepreneur, the Chinese migrants in the country have been causing socio-cultural ripples with their unparalleled quick adaptability to the local environment. “In the next 50 years in Kenya, the Chinese people are going to integrate into the Kenyan society in ways that can only be unimaginable today,” said Christom Karimi, a Kenya-Chinese cultural expert, who speaks perfect Mandarin.

To date, the most famous of these Chinese marriages has been that of Liang Yongyu and his 29-year-old wife, Karen Ngunjiri, who married recently. It became a public matter when an unknown fellow who must have attended the wedding uploaded their exclusive marriage ceremony video that went viral.

Inter-racial families in Kenya have never been a big deal; they are prevalent, especially among white men and indigenous Kenyan women. The white folk in Kenya has been around for long, and their liberal Western culture, English language, Christian religion and general demeanour have made it easier for Kenyan girls to easily gel with them. Not so with the Chinese, whose Oriental culture, language and even religion and their “peculiar” culinary habits have been alien to Kenyans. Chinese people eat dogs, cats and even frogs. These cuisine recipes would test the taste buds of even the strongest Kenyans, who are otherwise known to enjoy international menus.

Early this year, at Diamond estate in South B, Nairobi, a German shepherd went missing. A notice was plastered on the main gate to the estate. After a couple of days, when the garbage collectors came to pick the trash, they found the dog’s head in one of the dustbins. A security meeting was called and the people confronted one of the Chinese estate residents. He owned up to rounding up the canine and agreed to pay a fine of Sh35,000.

Usually, when a local girl gets married to a white man in Kenya, she is whisked off to a posh suburban area: these girls believe they have crossed the Rubicon; it is a mark of upward mobility and privileged social status. Not so with the inter-racial Chinese marriages between Chinese men and Kenyan women; like Nyawira, many end up living in shanty towns.

Where it all began

In 2009, three Chinese companies were contracted by the Kenyan government to build the Nairobi-Thika superhighway. These companies imported Chinese migrant labour who did the actual road construction. The Chinese workers lived in makeshift tin shacks with makeshift mobile toilets in a compound that was sealed from the rest of the Kenyans. The biggest construction site was at the huge Globe Cinema roundabout, where the construction of the 50 km superhighway began. The roundabout is just 500 metres from Nairobi’s central business district (CBD).

The Chinese workers were under strict instructions from the companies’ general managers not to meander into the CBD. So the only meaningful interactions the Chinese workers had with Kenyans was during tea and lunch breaks. At tea break, they would be served African tea and mandazi (a doughnut-like delicacy). For lunch, they were served local cuisine. The food usually included, ugali, githeri, chapati and broth made of turtle beans and green grams. Many of the girls and women who sold food at the site were from Mathare Valley, a large informal settlement that borders the Thika superhighway – the language barrier notwithstanding.

Five years later, in 2012, when the $360-million road was opened by President Mwai Kibaki, the Chinese migrant labour had not only completed the road and overpass bridges, they had also invested in creating inroads and building bridges among the local female populace. Referred to as chinku – the ghetto slang name for the Chinese, the Chinese quickly learned the local lingua franca Sheng, the colloquial language spoken in shanty towns across Nairobi.

Today, the Chinese have not only married local girls and become assimilated into Kenyan life, they have also ventured into informal businesses, a preserve of Nairobi’s rank and file that lives in Eastlands, the poorer part of the city. The resilience of the Chinese came to light when they started trading at Gikomba Market, the largest second-hand clothes market in East and Central Africa. Gikomba Market, a stone’s throw away from Mathare Valley, is a bedlam of activities: you would have to be made of tough metal to conduct business there.

Not all the local women were as lucky as Nyawira and Wamaitha to be in steady relationships, Nyawira’s hubby later disappearance notwithstanding. There are many the tale of Chinese men who have sowed seeds wherever they worked and moved on, either back to China, or relocated to other working sites.

In Mathare 4B, Njeri was not as lucky: she was abandoned by her Chinese mate even after having two children with him. She was also serving food to the Chinese on Thika superhighway. Her two boys are now big – one is about 8 years old, while the other is 10.

Mathare Valley is a hellish place. Reminiscent of the favelas of Port Alegre and Rio de Janeiro, in Brazil, life in the slum is short, nasty and brutish. Among the children hopping over the open flowing sewers and mounds of garbage strewn all over are Njeri’s children, who have continually drawn attention from fellow children, not so much because of their fairer skin complexion, but more fundamentally, because of the shape of their eyes.

Such mixed-race children – often referred to as “Chikuyus” – can also be seen in other parts of the country. Last month, in Gitaru, Muthure village, a married woman gave birth to a baby that created a buzz among the villagers: the baby looked Chinese. When she was asked to explain the anomaly, she owned up to having an affair with a Chinese construction worker. The Gitaru–Wangige Road is currently under construction by the Chinese. Local folklore has it that when she was asked to identify the man, even after they were paraded for identification, she could not pick him. The joke going around is that all Chinese men look alike.

Such mixed-race children – often referred to as “Chikuyus” – can also be seen in other parts of the country. Last month, in Gitaru, Muthure village, a married woman gave birth to a baby that created a buzz among the villagers: the baby looked Chinese.

This is the same joke-story that Purity told me in Mwihoko, Githurai. Purity was a food seller at the Githurai roundabout during the road construction. Over time she befriended a Chinese man. When he impregnated her, he disappeared. “Ï went looking for him, among his colleagues, I couldn’t find him. That was 10 years ago, because that is how old her daughter is,” she said.

The Chinese invasion

The Chinese have not only been marrying local girls, impregnating the ones they could, and engaging in retail business, they have also, surprisingly, been attending church – mostly evangelical churches – and have even started local branches of international churches. To most Kenyans, the Chinese people are not known to worship the Christian God, much less worship God at all. This view traces its origin to the Chinese history as a majority of Kenyans understand it: that China has always been a communist country that has no place for God or religious activities.

Emboldened by the warm reception of a Christianised population, where 80 per cent of the country, nominally or otherwise, belongs to the various Christian denominations, the Chinese migrants are starting evangelical type churches even in rural Kenya. At Gambogi, a trading centre on the Kakamega-Kisumu Road, the Chinese construction workers who are building the 60km road between the two towns have colonised the Gambogi PAG (Pentecostal Assemblies of God) Church, situated just beside the road. Gambogi PAG Church, which has meetings in rented premises, has now added the name China to its church label to read China Gambogi PAG Church.

Today, there are three main Chinese churches in Nairobi, all run by pastors from abroad. The pastors, mainly from Hong Kong, Taiwan and Malaysia, are plying their trade in posh suburban areas in Nairobi. The Bread of Life Church, which is the better known of the Chinese churches, meets in a tall office block and caters mostly to employees of the Standard Gauge Railway (SGR), CGTN, the Chinese government broadcasting media house, and the business community.

Even though many of the migrant Chinese in Kenya are of evangelical persuasion, not all of them attend such churches. It is 4.00 pm at the Jehova Witness Kingdom Hall on Elgeyo Marakwet Road where the faithful meet every Sunday. A special service is going in Mandarin. Here, a group of Chinese Jehova Witness followers meet to fulfil their religious obligations. The meeting, incidentally, is not exclusively for the Chinese; there are Kenyans there, who by the virtue of attending these meetings, have learnt Mandarin.

The majority of these Chinese people live and operate around the radius between Ngong Road, Argwing Kodhek Road and Ring Road, Kilimani. Many of their social-economic activities are centred around this area. At the Chinese Centre on Ngong Road, for example, they can shop at their supermarkets, which cater solely to their needs. At Park 53 building on Ring Road, 90 per cent of the businesses, mostly restaurants, are owned by the Chinese. Because many of them do not speak the local lingua franca, English and Kiswahili, they tend to huddle together, hence live communally in the same area.

Amid all these Chinese activities in the country, their seemingly unchecked influx has apparently been causing disquiet among Kenyans, especially among small traders and the business community, who engage in the importation of merchandise. Kenyans tend not to be xenophobic, but the Chinese community is quietly and slowly eliciting xenophobic rhetoric among Kenyans.

The majority of these Chinese people live and operate around the radius between Ngong Road, Argwing Kodhek Road and Ring Road, Kilimani…At the Chinese Centre on Ngong Road, for example, they can shop at their supermarkets, which cater solely to their needs.

Several weeks ago, the MP for Starehe constituency, Charles Njagua, stoked xenophobic fears when he accused foreigners, who obviously included the Chinese, of monopolising all the businesses that “belong” to Kenyans. In his inciteful remarks, the MP said if the government did not take any “stern measures” against the foreigners, he would lead the people in ferreting out the foreigners out of the country. The MP has since recanted his statement, arguing that he was quoted out of context. But the point had already been made.

Traders on Gaberone Lane, the 100m backstreet alleyway behind Gaberone Road in downtown Nairobi supported and loudly voiced the xenophobic rhetoric against the Chinese. It is not difficult to see why. They all deal mainly in fabric and textiles materials, all imported from China. “Since the Chinese entered into this business, our businesses have gone down, they have been doing everything to undercut us by their price differentiation” said Ken Mutahi, who has been importing fabrics from China for the last 15 years.

“The Chinese have the unparalleled advantage of buying the materials directly from the factories, in their own country, while we buy from retailers. It has become increasingly impossible to compete with them, because all they need to do is lower their prices a little bit and they will still be within their profit margin,” complained Mutahi. He said that the traders were furious with the government for allowing the Chinese to “invade” their businesses. “Which government allows foreigners to overrun businesses meant for the locals?”

At Gikomba Market, anger has been building up against the Chinese traders, who have taken the second-hand clothes business by storm. “Chinese are now some of the biggest middle men, involved in selling thousands of bales of clothes,” said Elvis Kariuki, himself a trader at the market since the early 1990s. “We have been asking ourselves what kind of work permit these Chinese are on that allows them to engage in such businesses,” said Kariuki. Seemingly better organised and with a lot more capital than the local traders, the Chinese have been buying huge stocks of second-hand clothes mainly imported from the United Kingdom and filling all the warehouses in Gikomba.

“Expatriates who come to the country should be bringing in [new] knowledge and skills that maybe scarce or non-existent – why does the government allow the Chinese to come and take our jobs?” posed Kariuki. The trader said many of the Gikomba Market traders who have never known or done any other work, other than selling second-hand clothes, are very bitter with both the government and the Chinese traders.

The Chinese have not only infiltrated the second-hand clothes market, they are also involved in importing – from their own country – merchandise that was the sole preserve of the small traders. In downtown Nairobi, Chinese traders are running shops and renting stores which they stock with stuff imported from China. These items include cheap feature mobile phone handsets, their spare parts and hi-fi equipment such as hoofers.

“Some of the Chinese traders doing business in Kenya have been contracted by local companies back at home,” said a Kenyan trader who has been in the business of importing the same stuff. “The Chinese traders then become the conduits for creating new markets for the products manufactured back in China.”

The Chinese traders, on the other hand, have a different view of themselves. Some of the Chinese traders I spoke to said that they were not taking away anybody’s job or business – all they were doing was engaging in market competition. “We just happen to be aggressive and versatile,” some of one Chinese trader.

Forty-year-old Alex Cao (pronounced Chao), originally from Tianjin, came to Kenya seven years ago. He said he found his niche in real estate development. “It is never a smooth sail,” said Cao. “Dexterity is the name of the game if you have to survive the market onslaught.”

Richard Ling, 30, hails from Guangzhou and has been in Kenya for only three years. A trader, he hawks merchandise, including mobile phone gadgets, chargers, power banks, and torches, from his small rented stall at Kamukunji market building in downtown Nairobi.

Sixty-year-old Ling Fang came to Kenya 20 years ago. His wife joined him 10 year later. They found success in selling and stocking drapery and other upholstery materials, which they import in bulk from their country. From their shop on Biashara Street, they have engaged in both retail and wholesale business.

The dexterity of the Chinese in Kenya has seen them diversify in all manner of businesses. At the Eastmart supermarket on Tom Mboya Street, one of the upcoming suppliers of confectioneries is a Chinese man who makes doughnuts, shortcakes and cupcakes. “Every morning by 8.00 am, the Chinese man will deliver his goods without fail,” said the supermarket attendant who is in charge of the bread and cakes section. “His prices are between Sh10 and Sh20 cheaper and his cakes are slightly bigger, so they move faster.”

At their peak in 2015, there were about 40,000 Chinese in Kenya, but Karimi told me that over the couple of past years, the number could have gone down to between 30,000 and 35,000. According to Howard French, a journalist who has written the book, China’s Second Continent, there are upward of one million Chinese people in Africa.

“The Chinese who are always looking for favourable places to do business have recently been migrating to Ethiopia. The Ethiopian economy is growing at a steady pace, the government has reduced much of the red tape associated with starting businesses for foreigners and their tax regime is not as punishing,” Karimi said.

At their peak in 2015, there were about 40,000 Chinese in Kenya, but Karimi told me that over the couple of past years, the number could have gone down to between 30,000 and 35,000. According to Howard French, a journalist who has written the book, China’s Second Continent, there are upward of one million Chinese people in Africa.

By 2017, China had become Kenya largest trading partner. In 2017, it built a new railway line, at the cost of $3.18 billion, the most expensive infrastructure expenditure in Kenya since independence.

Two years ago, perhaps in an effort to endear themselves to Kenyans, a Chinese philanthropic group started a feeding programme in eight informal primary schools in Mathare 4A. The biggest of these schools, Chang Rong – which translates as Mathare Light Centre – is the biggest, with 400 pupils. Collins Abongo, a teacher at the school, told me the Chinese also sponsor a football tournament among the eight schools.

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BBI and the Referendum: Another False Start?

Constitutional amendments have preceded every Kenyan election since 1992. But have these amendments brought about real change or are they merely tools that are used to entrench the status quo? DAUTI KAHURA finds out.

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As the Building Bridges Initiative (BBI) comes to a close (the last town hall meeting is slated for July 28, 2019, in Nairobi County) the spotlight on the initiative has shifted to its mandate, and has been heightened up by a section of Kenyans who are already anticipating its probable outcome. This directed interest and anticipation of the process led to two widely circulated documents on social media on July 15, which the BBI team, led by its chairman, Senator Yusuf Haji, promptly denied. The documents, titled BBI Technical Team Proposals and Proposed Changes to The Constitution were declared “fake” by Senator Haji.

BBI was constituted after President Uhuru Kenyatta and Raila Odinga, his chief political opponent, shook hands on March 9, 2018. On May 24, 2018, BBI was gazetted and soon commenced its countrywide solicitations of public opinion.

Paul Mwangi, one of the joint secretaries to BBI (the other one is Ambassador Martin Kimani), in an interview conducted by The Elephant, said that the BBI team was shocked to see the documents, purportedly authored by BBI, being posted on the Internet. “We were surprised to see these documents. Like everyone else, the team saw them for the first time on social media. It is to be expected that as we conclude our town hall county meetings, interest in BBI’s work has risen in all quarters of the Kenyan society,” said Mwangi. “BBI hopes to wrap up its county participation on or around August 9 and, therefore, any report purporting to second-guess the committee’s work that is not from the BBI’s team is to be disregarded.”

The initiative’s terms of reference were extended to October from May, 2019, after it fell behind its schedule. Once through with the Nairobi meeting, Mwangi said the team will immediately start compiling the deliberations with the help of a team of researchers, each of whom has been assigned the nine thematic areas: corruption, ethnic antagonism and competition, devolution, divisive elections, inclusivity, lack of national ethos, safety and security, shared prosperity, responsibilities and rights. “We should be done by October 24,” he said.

I asked Mwangi whether a referendum was one of the issues that the BBI deliberated upon, to which he quickly retorted, “I don’t wish to preempt anything at this time of the process. BBI will suggest solutions and it’s these solutions that will determine whether there will be a referendum or not.”

But an inside source, who cannot be named because he is officially not authorised to speak on behalf of BBI, said: “The issue of a referendum is a foregone conclusion – the question is not if, but when the referendum will be held. That is the climax of the process.”

The source said the town hall meetings have been a process of setting the ground for an eventual referendum. “We will not go to the next general election without a constitutional change, that is why the issue of a referendum has gripped the nation, and you can see that is what currently is preoccupying Kenyans.”

The source told me Ekuru Aukot’s referendum efforts are meant to be a distraction to BBI’s own referendum project: “Whoever is funding him wants to steal the thunder from BBI, dilute and make nonsense of the BBI’s forthcoming referendum.”

But an inside source, who cannot be named because he is officially not authorised to speak on behalf of BBI, said: “The issue of a referendum is a foregone conclusion – the question is not if, but when the referendum will be held. That is the climax of the process.”

The people behind Aukot’s referendum hope to argue “why have another referendum and there is already one at hand that is actually addressing the fundamental issues in the constitution that are troubling Kenyans?’ observed the source. Nicknamed Punguza Mzigo (reduce the load) one of the biggest issues that the Aukot’s referendum wants to deal with is the issue of “over-representation”, hence, a need to reduce some of the political seats, such as MPs’ seats. Aukot is the party leader of The Third Way Alliance Party.

“Were Ekuru’s referendum to be held, he would only need the consent of 24 counties, as per the 2010 constitution. He would then take his finding to Parliament, which as currently constituted, is presumably controlled by Deputy President William Ruto’s supporters in the Jubilee Party,” said the source. “Although Aukot’s referendum issues sound right and would easily resonate with a majority of Kenyans, the proposed constitutional changes he is seeking are meant to blind Kenyans, that indeed he cares about their plight. Truth be said, those changes would be difficult to implement and in any case, they would not be implemented immediately.”

As a pointer to the coming BBI referendum, Senator James Orengo, Ugunja MP Opiyo Wandayi, Alego Usonga MP Samwel Atandi and Rarieda MP Otiende Amollo, faulted the Punguza Mzigo initiative and counselled the Third Way Alliance party boss to be patient and wait for BBI, which, ostensibly according to them, will deal with all the issues pertaining to Kenyans.

Said Orengo on July 21: “We are waiting for the BBI report that has all the issues of the people. The questions in Aukot’s proposal have not undergone stakeholders consultations, let’s wait for October when we will have the BBI report and thereafter a referendum that will decide on the fate of Kenyans.”

Succession politics

Since 1992, when the country returned to multiparty elections, no presidential succession has not been preceded by a constitutional change, said my source. “That is why the elephant in the living room of the BBI’s unproclaimed core mission has been the referendum. A chronological understanding of the succession politics since 1992 to date should therefore locate the real reason behind BBI’s formation, its real agenda, bearing in mind the 2022 succession political perspective and its dynamics.”

Responding to Western countries’ pressure to liberalise the monolithic Kanu party politics, President Daniel arap Moi, in December 1991, orchestrated a political process that culminated in the removal of Section 2A of the old constitution that made Kenya a de jure single party system. And although the amendment to the constitution did not immediately transform the country into a democratic polity, it allowed for the introduction of pluralistic politics. That is how FORD, before it split into two (Ford-Asili and Ford Kenya), the Democratic Party of Kenya (DP) and the Kenya Social Congress (KSC), led by firebrand politician and ex-detainee, George Anyona, came into being. So, for the first time since independence, opposition parties were allowed to participate in the December 29, 1992 general election.

Faced with another election in five years, President Moi was again confronted with demands to expand the scope of the political space, as well as to institute constitutional and legal changes. Between 1992 and 1997, there were continuous demands from the opposition and civil society organisations to effect these changes, especially to level the tilted playing field. President Moi ignored these demands until a few months before the December 29, 1997 general election. Principally, to ease off the pressure that had been building and that had threatened to forestall the elections through a boycott under the clarion call of “no reforms, no elections”, he acquiesced to some minimum reforms.

Responding to Western countries’ pressure to liberalise the monolithic Kanu party politics, President Daniel arap Moi, in December 1991, orchestrated a political process that culminated in the removal of Section 2A of the old constitution that made Kenya a de jure single party system.

Inevitably, the question in 1997, as the country prepared for its second multiparty elections. was: Should we go to the elections with or without reforms? As the political temperatures gradually soared, it became imperative that the country needed some facilitative reforms.

The formation of the Inter-Parties Parliamentary Group (IPPG) allowed President Moi some breathing space, and afforded the opposition some minimum reforms to go to the elections with. Just a month before the election, in November, through the IPPG, a number of constitutional, legal and administrative changes were adopted. They included enlarging the Electoral Commission of Kenya (ECK) to accommodate representatives from the opposition, repealing the Public Order Act (which President Moi used to harass and scuttle the oppositions’ rallies), and allowing the registration of new political parties. At that time, the Safina Party, led by Paul Muite, was registered and more fundamentally, the Kenya Broadcasting Corporation (KBC) Act was amended to allow for more equal air time for all political parties.

Aware that the facilitative reforms had allowed President Moi to hold a largely incident-free election in which once again he trounced his opponents, civil society, led by the National Convention Executive Committee (NCEC) – which was at the forefront of demands for a new constitution, and which was opposed to piecemeal constitutional reforms – was unrelenting in its push for a new constitution. The issue of a new constitution, just like the facilitative reforms, was one that President Moi did not want to deal with and therefore kept postponing the matter.

By the late 1990s, when faced with an election that he would not participate directly in as a presidential candidate since being elected in 1978 after the death of President Jomo Kenyatta, President Moi had already started planning his exit and successor. A new constitution did not feature in his plans because his hand-picked successor, Uhuru Kenyatta, went into the elections under the old constitution, fraught as it was with risks.

To deflect the NCEC’s pressure and refusing to cave in to demands for a new constitution, President Moi suspended Parliament on October 25, 2002, and announced an election timetable, all in the name of forestalling Katiba Tuitakayo, a proposed new constitution model by NCEC. Under the old constitution, the President was bestowed with the powers to dissolve Parliament and call elections at his pleasure, and once Parliament was dissolved, a general election had to take place within 90 days.

On November 4, 1999, at a press conference, the NCEC spokesperson Prof Kivutha Kibwana pointed out that, “Kanu has demonstrated that it is unwilling and therefore incapable of ushering in constitutional and democratic change in Kenya.”

The general election was held on December 27, 2002, and President Moi’s project – the candidature of Uhuru Kenyatta running on a Kanu ticket – was defeated by Mwai Kibaki, formerly of the Democratic Party, but then running under the banner of the National Rainbow Coalition (Narc). The first thing that President Kibaki promised when he was sworn in at Uhuru Park on December 31, 2002 was a new constitution within a 100 days.

To fulfil his promise, Kibaki supported the continuation of the work of the Constitution of Kenya Review Commission (CKRC), which had been constituted in November 2000 by a legal framework for reviewing the constitution. CKRC was headed by the renowned constitutional lawyer, Prof Yash Pal Ghai. After their lengthy deliberations at the Bomas of Kenya, CKRC, came up with a new draft constitution. The draft included a raft of constitutional proposals, such as a parliamentary system of government with 14 regions, and a hybrid presidential system with more or less ceremonial powers but with co-shared executive powers between the president and a prime minister. It was an experiment that borrowed from both the British (parliamentary) and the American (presidential) systems.

“But instead of presenting the Bomas Draft to Kenyans, President Kibaki gave them a ‘skunk’ in the name of the Wako Draft,” said the source. “Amos Wako was the then Attorney General and instead of giving Kenyans the draft constitution that they had helped to come up with, he bastardised the Bomas Draft and edited the old constitution to cheat Kenyans that that was the new constitution that they had debated upon.”

This Wako Draft was the basis of the Orange vs Banana referendum in 2005. The Orange proponents opposed the draft, while the Banana supporters proposed the implementation of the draft. “The outcome of that referendum had not been difficult to predict,” said the source. “Clearly, what was being presented to Kenyans was not what they had proposed to CKRC and which had been adopted at Bomas of Kenya through the National Constitutional Conference (NCC).”

The Wako Draft was rejected by a majority of Kenyans and thereafter, President Kibaki fired all his cabinet ministers. Those who were aligned to the No (Orange) movement did not return to government. “Constitutional experts have always argued that it was at this point that President Kibaki ought to have resigned from government because the referendum had essentially passed a vote of no confidence in his government,” said the source.

The critics of the Bomas Draft, mainly technical people and some political elites, argued that the draft was a mongrel kind of constitution that failed to locate state power and therefore was not bold enough to differentiate between the president and the prime minister, who wielded real power. The critics pointed out that in a politically fragile country like Kenya, this was a risky venture.

“After the government was defeated in the referendum, electioneering went into high gear and that is when the Orange Democratic Party (ODM) was formed by Raila after he was sacked as a cabinet minister,” the source said. “The electorate was being prepped to go into the 2007 election without a new constitution and clearly this was a harbinger of things to come…the ominous signs were there…as sure as night follows day, there was going to be violence.”

The Wako Draft was rejected by a majority of Kenyans and thereafter, President Kibaki fired all his cabinet ministers. Those who were aligned to the No (Orange) movement did not return to government. “Constitutional experts have always argued that it was at this point that President Kibaki ought to have resigned from government because the referendum had essentially passed a vote of no confidence in his government,” said the source.

After the devastating election of December 2007, after which violence indeed erupted, especially in the North Rift, the country was taken back to pre-2002 scenario: the country needed to have a new constitution if it was to hold the next general election in five years time.

In 2008, Ekuru Aukot become the chief executive officer (CEO) and secretary of the Committee of Experts (CoE) that was mandated to look afresh into the matter of processing a new constitution. Nzamba Kitonga became the CoE’s chair. The CoE members included, among others, the current Supreme Court of Kenya judge Njoki Ndungú, Otiende Amollo, currently the MP for Rarieda, Atsango Chesoni, Prof Frederick Ssempembwa, a Ugandan, Chaloka Beyani, a Zambian, and Prof Christina Murrey from South Africa.

“The CoE came up with the Draft Proposed Constitution of Kenya, which it rolled out for people’s comments and opinions just like BBI is doing, only that its methods were different,” said the source. It printed the Draft in thousands, placed it as inserts in the mainstream newspapers, uploaded it online and also printed booklets which were distributed to the populace.”

After reviewing the Draft as the law required, the CoE passed the document to the Parliamentary Select Committee (PSC) on constitutional review chaired by Abdikadir Mohamed. The PSC meeting held in Naivasha made a significant change: it removed the hybrid system and replaced it with a purely presidential system, the one that Kenya has now.

The PSC Draft is what was published by Wako – “and as the law required of him, he was not to tamper with the draft, as he had done in 2005 with the Bomas Draft. The Draft was taken to Parliament as is and it was passed as a consensus document.”

After reviewing the Draft as the law required, the CoE passed the document to the Parliamentary Select Committee (PSC) on constitutional review chaired by Abdikadir Mohamed. The PSC meeting held in Naivasha made a significant change: it removed the hybrid system and replaced it with a purely presidential system, the one that Kenya has now.

“With the foregoing, it is obvious that Kenya must have, at the very least, constitutional changes, if it is to face the 2022 general election” said the source. “After the 2017 general election, in which for the first time in the history of legal jurisprudence, a presidential election win was revoked by the judiciary, to be followed by a fresh presidential election, the country for a while seemed to teeter on the precipice.”

“It looks like the political elite logic has always been to play the election game of holding elections every five years, while all they do is tweak the constitution to create the impression that we have dealt with real constitutional changes. All this in the name of perpetuating themselves, putting the opposition in its place and ensuring there is no tumultuous revolt,” said the source.

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