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Building Bridges to Nowhere: Some Reflections One Year After ‘The Handshake’

The question that has been boggling many Kenyans’ minds is: What exactly led to President Uhuru Kenyatta and Raila Odinga…to suddenly make peace? Was this a spontaneous reaction of two leaders who had suddenly been imbued with an undying desire to save their country, which was on the verge of ethnic and geographical fragmentation?

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Building Bridges to Nowhere: Some Reflections One Year After ‘The Handshake’

A year ago this month, an unexpected political commotion jolted unsuspecting Kenyans who were still reeling from the effects of two presidential elections that had taken place in a space of just 79 days. These elections had openly split the country into ethnic fault lines that were now threatening to plunge the country into an abyss of anarchy and civil strife.

The 9 March 2018 “handshake” between President Uhuru Kenyatta and opposition leader Raila Odinga – pejoratively referred to as “the handcheque” by cynics and Raila’s former front line and hard core supporters, who see the détente between the president and his main rival as the ultimate betrayal – took place against a backdrop of four months of palpable ethnic rivalry and tension that had been simmering since the 26 October 2017 presidential poll, in which Uhuru had essentially run against himself.

When he was sworn in on 28 November 2017, it was evident that President Uhuru did not seem to savour his presidential victory: In the first general election of 8 August, half of the total registered voters of 19.6 million people who cast their votes had voted against him, even as claims of rigging by the opposition outfit, the National Super Alliance (NASA) were rife. On 1 September, the Supreme Court of Kenya overruled the Jubilee Party win, and sued for a fresh presidential election in 60 days – a decision that to date rankles and startles President Uhuru, said a Jubilee Party MP from Central Kenya.

“In a country where the judiciary has always been malleable and at the beck and call of the executive since 1963, it was unheard of that a court would dare rule against the president’s wish,” observed the MP. “It had never happened, hence Uhuru was secure in the knowledge that the court wouldn’t ever dream of ruling against him, just like it hadn’t in 2013. And because African presidents don’t lose elections, at least not through the courts, he did not expect to lose his.”

So, when the Supreme Court ruled in favour of a repeat election, Uhuru Kenyatta hit the roof and swore against the court’s judges, threatening to “revisit the issue”.

In the repeat October election, Uhuru Kenyatta garnered far less votes than in the August election. Seven and half million people supposedly voted, a figure the MP, now with the knowledge of hindsight, told me was cooked. A majority of Raila’s supporters had boycotted the October election and apathy, fatigue and a don’t-care attitude among Uhuru’s support base ensured that the October election was even less credible than the August one.

The question that has been boggling many Kenyans minds is: What exactly led to President Uhuru Kenyatta and Raila Odinga, two of the bitterest of political rivals, who had left nothing to chance – as one fought to keep the coveted seat of the presidency to himself, while the other hoped to snatch it from the incumbent – to suddenly make peace? Was this a spontaneous reaction of two leaders who had suddenly been imbued with desire to save their country, which was on the verge of ethnic and geographical fragmentation?

The politics of handshakes is not exactly a new phenomenon in Kenya, so this was not a first. Ten years ago, almost to the month, on 28 February 2008, President Mwai Kibaki and his chief political nemesis, Raila Odinga, shook hands on the steps of Harambee House to the great relief of many Kenyans. The 2008 handshake had been occasioned by a hotly disputed presidential vote between Kibaki and Raila, which had driven the country on the precipice of ethnic warfare that had flared in the Rift Valley and in several other parts of the country.

The question that has been boggling many Kenyans minds is: What exactly led to President Uhuru Kenyatta and Raila Odinga…to suddenly make peace? Was this a spontaneous reaction of two leaders who had suddenly been imbued with an undying desire to save their country, which was on the verge of ethnic and geographical fragmentation?

The truce between Kibaki and Raila was a negotiated peace settlement: both politicians had been encouraged by the chief negotiator, Kofi Annan, and his team to form their own respective negotiators, who then for weeks discussed the modalities of how they would accommodate each other in a government of national unity. And so it came to pass that a government of national unity with Raila Odinga as a non-executive Prime Minister was formed. The process was transparent and Kenyans were kept abreast of the proceeding by the media.

The economic boycott and demands for secession

Fast forward to March 2018. The handshake between President Uhuru and Raila is mired in mystery and subterfuge. Days after the handshake on the steps of Harambee House, a working committee was formed on 24 March to cement the newly found rapprochement, thenceforth referred to as the Building the Bridges to Unity Advisory Task Force, also known as the Building Bridges Initiative (BBI).

The alleged behind-the-scenes secret talks, political manoeuvres and familial visits soon after Uhuru assumed his second term are as intriguing and interesting as they are revealing. Through wide-ranging interviews conducted through President Uhuru Kenyatta’s intermediaries, Raila’s close confidantes, Deputy President William Ruto’s associates and bosom buddies, Central Kenya and North Rift Jubilee MPs and through my own investigations, I culled an array of information that suggested a presidency in crisis, trapped in a paradoxical pyrrhic victory and a withering state. Then there was a defeated opposition leader who for the very first time in his political career was caught between the devil and the deep blue sea, and was faced with the devil’s alternative of either quitting politics altogether or re-engineering his ebbing political career. Add to this scenario a scheming deputy president who had already trained his guns on 2022 no sooner had his Jubilee Party won the presidential elections.

Looking back to one year ago, it is as if the clock was ticking and time was not on all of the three protagonists’ side. As one of Raila’s aides said to me: “Raila had come to the late realisation that he would never win the presidential elections as long as the Kikuyus were counting the votes. True, he would force them to spend billions of shillings, but that was just about it. It was about time he recalibrated his political career if he intended to keep it going.”

“Nothing had scared President Uhuru like the NASA’s economic boycott programme and secession talk,” confided one of the president’s friends. Like the Americans would say, Uhuru and his family were “scared shitless” of these two ideas. After opting out of the 26 October fresh presidential election, Raila and his team had come up with a raft of options that were meant to force President Uhuru and his Jubilee Party mandarins to listen to NASA. NASA supporters’ boycott of products made by certain companies associated with the Jubilee Party and resurgent demands for secession by some opposition politicians, particularly at the coast, threatened to tear the country apart – literally.

The most potentially lethal of NASA’s projects was the economic boycott, in which Kenyans of oppositional goodwill were asked to keep away from the Kenyatta family’s businesses and any companies that were either associated with them, or had, in one way or another, presumed to have abetted President Uhuru’s contested win. So, in addition to the family’s large business empire, Safaricom, the largest mobile network company in this part of the world, was on NASA’s radar of companies whose products were to be avoided. The second tier to the economic boycott was a proposal, through the creation of county assemblies in opposition strongholds, for people to decide, whether indeed they wanted to be part of Kenya.

The family business

The biggest Kenyatta family business visible on a daily basis in Kenyan homes is the Brookside Dairy Company. Plutocrats, as well as mainly urban proletariats, use one or more of the several milk products sold under the Brookside label.

Milky tea is consumed widely in Kenyan homes. Drinking a cup of tea is a habit so ingrained in Kenyans’ psyche that it has become second nature for Kenyan families to round off their supper with a steaming cup of tea. It is a habit they picked from the British colonialists, who encouraged tea growing as a cash crop.

With the onset of the boycott, Brookside, a market leader in processed milk, suddenly suffered a steep slump, so much so that Christina Pratt, President Uhuru’s sister, took to visiting various supermarkets, especially in Nairobi, to gauge the daily sales of Brookside products. (I confirmed this in December 2017 when I also did my own survey to measure to what extent the boycott was biting. The French consortium, Danone, had in 2014 acquired a 40 per cent stake in the milk conglomerate through the holding company Brookside Africa Holding Ltd, while Abraaj Group, the Dubai-based private equity firm, had staked a 10 per cent ownership in 2009. Danone is supposed to push Brookside products abroad, hence globalising the Kenyatta family’s business and leveraging its merchandise in a world of cut-throat competition.

With the onset of the boycott, Brookside, a market leader in processed milk, suddenly suffered a steep slump, so much so that Christina Pratt, President Uhuru’s sister, took to visiting various supermarkets, especially in Nairobi, to gauge the daily sales of Brookside products.

“The boycott was a dangerously crippling idea as a political tool, because the Kenyattas’ best-known flagship was going down the drain, right in front of their eyes…something had to be done fast…and done very fast,” said my friend, who works for the Brookside Dairy Company in Ruiru, off the Thika Superhighway. “Let us cut to the chase,” added my friend. “Uhuru Kenyatta is not concerned with the Kenyan nation’s legacy but with the Kenyatta family’s legacy.”

“The family business had to be protected by all means, by any means necessary,” said a Central Kenya MP who is close to President Uhuru. “Instructions from the matriarch, Mama Ngina, to Uhuru and family was that the cardinal rule was to protect the business and not politics per se. In other words, use politics to shield your businesses from external interference or collapse.”

The other issue that terribly worried President Uhuru and his close-knit political cabal was the talk about secession. “It became a terrifying waking nightmare to them, that a section of Kenyans would even contemplate the thought of slicing off the country because of political dissatisfaction,” said the MP. “These were a different type of angry Kenyans, separate from the Kenyans who even when their votes had been stolen in past elections never contemplated going their own away.”

Apart from the Kenyatta family’s business agonies, Safaricom, which NASA and its opposition supporters countrywide had accused of providing servers to the Independent Electoral and Boundaries Commission (IEBC) – servers the election commission to date has refused to open for public scrutiny – was seriously looking to the possible end of its close to two decades of mobile telephony monopoly. Kenyans allied to NASA were furiously opting for Safaricom’s competitor, Airtel. “The Safaricom management team was wailing in its boardroom, wondering what to do, as scores of Kenyans daily migrated to Airtel,” said a Safaricom senior manager to me. “The team called Raila and asked him why he was hell-bent on collapsing the company. Similarly, the team was also piqued by President Uhuru because he seemed impotent in the wake of the economic boycott. They were peeing in their pants, in a manner of speaking.”

The economic boycott, the threats of secession, a withering state, and pressure from Western governments became the push factors that drove the Kenyatta family to initiate a political rapprochement with Raila Odinga, confided an aide to President Uhuru.

The people’s president

Raila, on the other hand, was also undergoing his own political catharsis. “Wherever he went, the people become cantankerous and difficult to calm down: “Hapana…hapana…kula Bible kwanza, kabla hujaongea na sisi” (Swear by the Bible first before talking to us), roared the crowds. Critically, his political career was on the cards, observed one of his aides recently in an interview. “The masses had run ahead of Raila and they were demanding he become their president, failure to which they would abandon him.”

The economic boycott, the threats of secession, a withering state, and pressure from Western governments became the push factors that drove the Kenyatta family to initiate a political rapprochement with Raila Odinga, confided an aide to President Uhuru.

The NASA brigade had decreed that in the light of the contested presidential elections, Raila Odinga would be publicly sworn in as “the Peoples’ President”. He had postponed this once on Jamhuri (Independence) Day on 12 December 2017, and the backlash from his supporters was unmistakable. “If he postponed it again, they were going to have him for supper and that would have been the end of his illustrious political career,” reminisced one of Raila’s aides. “On 30 January 2018, a reluctant Raila was publicly sworn in at Uhuru Park as the Peoples’ President to great aplomb by the throngs of the masses who attended the rally.”

Western countries’ ambassadors and like-minded envoys told Raila point black: “You’ve been appointed the peoples’ president, but know that you’re all alone.” They reminded him of his political stature as one of the country’s leading politicians, his international reputation, and his input of many years in national and global political arenas. They asked him whether he was willing to see all that credibility washed away because of his recalcitrant stance. “Separately, therefore, Raila Odinga was also having his moments of exorcising his demons and coming to terms with the political realities of the day,” observed the aide.

Although the same Western envoys did not rebuke President Uhuru, they nonetheless asked him to map out ways of accommodating and working with Raila. “It was a veiled threat because they let him know that if he failed to do so, they would institute economic sanctions on his regime and make his life as a president keen on a legacy difficult,” confided a foreign diplomat friend who works for the European Union (EU).

Raila Amolo Odinga has paid a huge price for dabbling in national politics: He has been detained for close to a decade by the state. In the 2007 general elections, he saw his presidential victory snatched. In recent times, he has also experienced personal traumas: His first-born son Fidel died in 2015; his daughter Rosemary is recovering from a debilitating sickness (both of these two calamitous situations have been energy-sapping, friends of Raila tell me); and real threats had been made on his life. At 75, Raila is also no longer the youthful adrenaline-driven politician who could pack public rallies and indoor meetings into 18 hours and still spare four hours of just enough sleep to see him through the next day’s political onslaught.

Although the same Western envoys did not rebuke President Uhuru, they nonetheless asked him to map out ways of accommodating and working with Raila. “It was a veiled threat because they let him know that if he failed to do so, they would institute economic sanctions on his regime and make his life as a president keen on a legacy difficult,” confided a foreign diplomat friend who works for the European Union (EU).

Amid all this, his dutiful wife, Ida, has borne the brunt of his oppositional politics. While Raila politicked, she held the family together, ensuring that politics did not come in the way of the family’s private lives. “But the 2017 presidential elections, his swearing-in ceremony on January 30, and threats on his life had tested her great patience and worn her down,” said a friend close to the Odingas.

Impeccable political folklore has it that it was the Kenyattas who approached the Odinga family for a candid sit-down, said a Central Kenya MP. “With the ongoing threats to their businesses, a wobbly economy and a hollow electoral win, the Kenyattas were in a bad place: they had to reach out to Raila, but only through Ida,” said a source who was privy to the on- goings.

“Before the actual handshake on the material day, President Uhuru and Raila had met for several hours, haggling and going over issues of mutual convergence and interest,” revealed an MP from Central Kenya. BBI has nine points that President Uhuru and Raila agreed to work on. They are: ethnic antagonism and competition, lack of a national ethos, inclusivity, devolution, divisive elections, safety and security, corruption, shared prosperity, responsibilities and rights.

“I remember President Uhuru telling his deputy William Ruto: ‘We’ve to bring on board Raila Odinga, if we don’t, we’ll not be able to govern this country,’” said my source, who is known to both of them. “The only thing that Ruto was not told was when and where the handshake would take place.”

Ruto had run the country between 2013 and 2017, quipped the Central Kenya MP, “and it had been a disastrous affair. Yet both Uhuru and Ruto share blame for running the country down.”

BBI and the Kikuyu-Kalenjin rift

In 2014, a year after Uhuru and Ruto formed the Jubilee government, President Uhuru summoned all Kikuyu MPs to State House and told them that if they needed anything, they should go to the Deputy President. “We must ensure our people trust the DP…you know our people are conservative,” the President is purported to have told the MPs. The two had campaigned on a platform of being the victims of the International Criminal Court (ICC) and therefore had been “joined at the hip” as they canvassed for votes from Kenyans who had been ethnically and emotionally whipped to vote for them.

“In that meeting, Esther Murugi (former Nyeri Town MP) disagreed with the president,” recounted the MP. “‘In Nyeri, we’ve had IDPs [internally displaced people] at Kinoru. Mwai Kibaki [Kenya’s third President] ruled with these people [the Kalenjin] because he feared them,’” said Murugi to President Uhuru. “This is simply untenable.” Three years down the line, Esther Murugi was one of the first Central Kenya MPs to fail to recapture her seat because she did not get the Jubilee nomination.

“Ruto is very vindictive,” the Central Kenya MP reminded me. “He doesn’t forgive: all those people he suspects of having implicated him in the ICC case must be punished.” The MP told me that some of the MPs who failed to bag the Jubilee Party nomination tickets and eventually “lost” in 2017 elections are suspected by Ruto’s people of helping to compile part of the report that incriminated him and sent him to the ICC.

2014 was not the last time that President Uhuru summoned MPs to State House. In August 2017, he met with newly elected Jubilee Party MPs. “He was soaking drunk and he lectured us, as a headmaster would his pupils,” said a first-time MP from North Rift. “Rookie MPs who had never been to State House were excited to be called for the breakfast meeting. But when they were lectured by a drunk president, who was allegedly banging tables, cursing and swearing, they were dumbfounded.”

“Ruto is very vindictive,” the Central Kenya MP reminded me. “He doesn’t forgive: all those people he suspects of having implicated him in the ICC case must be punished.” The MP told me that some of the MPs who failed to bag the Jubilee Party nomination tickets and eventually “lost” in 2017 elections are suspected by Ruto’s people of helping to compile part of the report that incriminated him and sent him to the ICC.

“Don’t joke with a president who’s not seeking a second term,” President Uhuru is reported to have told the MPs. “I dare anyone who will not do as I say to walk through that door,” he hollered to the now cowed MPs. “Why he was angry, we don’t know. When he finished ranting, the MPs stood up and instead of heading to the laid out breakfast tables, they hastily walked to their waiting cars, and drove off in a huff.”

As fate would it, a few days after that tense meeting, the Supreme Court nullified the election on September 1. “Uhuru once again quickly summoned us to State House: ‘You’ve seen what the court has done to our win’” said a now mellow and pliant president. ‘We need to put our heads together and strategise on how to win the presidential seat again.’ He was now speaking to us in collegial terms – ‘our win’ – the insults and threats had gone, he wanted our help so badly…that’s our President Uhuru.”

“A year later, BBI has not communicated the handshake properly to Kenyans,” said my Central Kenya MP friend. “There hasn’t been enough awareness about its real and true agenda and intentions.”

Unlike the handshake of 2008, which was witnessed by, among others, Tanzanian leaders, Benjamin William Mkapa and Jakaya Mrisho Kikwete, and the Ghanaian statesman Kofi Annan, the 2018 handshake did little to reduce mistrust or to help build confidence and lend credence to the rapprochement. On the contrary, the 2018 handshake is shrouded in suspicion; many Kenyans believe it has an insidious agenda and most are hard put to explain what it means.

One of the very first things President Uhuru and Raila, now under the auspices of BBI, had planned to do was to visit Central Kenya, as the first entry point of selling the BBI agenda, said the Central Kenya MP. “It was a natural and obvious consequence that BBI seeks to build trust and confidence among these two warring communities, but the visit has remained on the cards, postponed several times.” The MP said Central Kenya has not been in the mood to welcome President Uhuru Kenyatta. “Right now, they don’t feel him, they feel let down by a leader who seem impervious to their economic tribulations. This is what the intelligence reports relayed to the president have been saying.”

But, said the MP, this could all be hot air: “Right now, it’s true they are angry and bitter with muthamaki, so, to project their anger they become emotional and end up saying irrational things like, ‘We’ll vote for William Ruto.’ Kikuyus are the most ethnocentric community in Kenya, and all this bottled-up anger melts on the D-Day [election day]. When they say they’ll vote for Ruto, they mean they’ll vote for him from their houses. No Kikuyu will troop to the ballot booth to line up and vote for a non-Kikuyu presidential candidate – Ruto included.”

Paul Mwangi, one of the joint secretaries (the other is Martin Kimani) to BBI, disputes the assertion that there has been a planned Central Kenya visit from the two leaders that has failed to materialise. “It is not true that the two leaders have been planning to visit Central Kenya. Remember BBI has been holding town hall meetings across the country and it wouldn’t be a great idea to start the visits. For two reasons: one, fear of raising political temperatures and two, fear of misinterpretation of BBI’s work by some MPs, who would want to hijack the BBI’s agenda for their own gain.”

“A year later, BBI has not communicated the handshake properly to Kenyans,” said my Central Kenya MP friend. “There hasn’t been enough awareness about its real and true agenda and intentions.”

Mwangi said BBI had already conducted 18 town hall meetings. “There 29 more to go, it is obvious we’ll not beat the stipulated one year deadline. We’re going to ask for more time from the principals.”

Even with less than half of the counties visited, the emerging theme in these meetings has been – punda amechoka…punguza mzigo (The donkey is overloaded and therefore fatigued…let’s lessen its weight). That is the literal translation. The interpretation is that the voter feels burdened and therefore fatigued by the seemingly overwhelming extra political seats created by the new constitution promulgated in August 2010.

With a ballooning wage bill, and mounting domestic and external debts that have apparently overwhelmed the government, the state has sometimes inadvertently been giving the impression that it cannot deliver development and services to the people because it is having to spend a lot of money paying political leaders.

Be that as it may, “BBI is nothing but an entrenched political cabal’s way of controlling national politics and state power so that they remain with the people who have always controlled the two. But more importantly, it is the cabal’s way of ensuring that state power does not land in the ‘wrong hands’’, said a Jubilee MP, who is a friend to both President Uhuru and his deputy. “The Kenyatta family would like to have a political stranglehold on Kenya, the way the Bongo family in Gabon has done.” (Ali Bongo, who has ruled Gabon since 2009, took over from his father, Omar Bongo, who was president for 42 uninterrupted years.)

“BBI’s town hall meetings are supposed to culminate in a referendum and this is where the catch is – it’ll not be by popular vote, but by delegates voting by acclamation,” opined the Jubilee MP. “All these supposed town hall meetings are a ruse: BBI knows what it wants, how it wants it…these meetings are dress rehearsals that are supposed to dupe the people to believe that their voices matter. Carefully selected delegates from 24 counties will be assembled at the Bomas of Kenya for a convention in which they will all unanimously agree to pass the tabled resolutions. That’s how it shall come to be.”

Yet, in a carefully worded rejoinder, Mwangi retorted to the contrary: “BBI has no position on whether or not there’ll be a referendum, that’s a matter that will be dependent on the solutions that BBI will recommend to the principals and where the holding of the referendum will take place will be part of those resolutions.”

The referendum is a must, my sources from Raila’s quarters said to me matter-of-factly. “Raila has indicated there’ll be a referendum this year, it must happen, if it could happen before the population census, the better and he is not bluffing…if it doesn’t take place, he walks away…it is a very serious matter to him.” (The Kenya population census is slated for August this year.)

“We welcome the referendum,” said a North Rift Jubilee MP and one of the DP’s close associates. “We’re not afraid of it. We are going to frame the question differently and better and we’ll be asking Kenyans – kama kweli punda amechoka, (if truly the people are overwhelmed, hence, the demand for a reduction of the constitutional stipulated seats), why then expand the executive? This not our first referendum to engage in…we have been there before and we know how to play the game.”

The Ruto factor

The MP observed that the machinations against Ruto by the so-called “Kiambu mafia” will not work. “Ruto is a hardened and seasoned politician, he has passed through many political tribulations and overcome them. Even this one, he’s going to overcome it.”

The MP pointed out to me that during the August 2010 referendum on the new constitution, in which the Greens supported the new constitution, while the Reds opposed it (with Ruto in the Red corner), “Ruto, even without having money to wage a proper campaign, still gave his antagonists a run for their money.”

Recently, William Ruto’s think tank has advised him to travel abroad and seduce Western countries’ audiences. At a Chatham House lecture on 8 February this year, he supposedly talked tough and even alluded to Raila as a professional perennial presidential loser. These presidential losers are the people who cause trouble in Africa, he is said to have told the audience. After the Chatham House engagement, on 12 February, he dropped by at the BBC’s London offices for the first of his planned media charm offensives – an interview with BBC Hard Talk host Stephen Sackur. Sackur was typically blunt and probing, even suggesting that Ruto was known to be among Kenya’s most corrupt people. The charm offensive obviously failed as Ruto struggled to make his case.

But BBI is not the only juggernaut the DP will have to contend with. “Ruto rigged many of the Central and Mount Kenya Jubilee Party MPs that he felt were not on his side, or would be difficult to control, or influence,” said the MP. “He ensured all loyal MPs from his side were handed the certificates easily. That was not the arrangement he had with Uhuru when he was tasked to take charge of the party nomination affairs after the fiasco of the first countrywide nominations trials.”

The MP said that all the former MPs who lost their seats and who are still smarting from their loss loathe Ruto, and are just waiting for the opportune time to strike back. “Yes, they also rail against President Uhuru privately; ‘the man has never been in control of anything.’ They, therefore, have sworn to not support any venture by Ruto. They are adamant they won’t stop saying Ruto rigged them out.”

Among the most hurt of the Mount Kenya politicians who accuse Ruto of rigging them out are: Cecily Mbarire (who ran for the Embu governor seat); Kabando wa Kabando (former MP, Mukurwe-ini in Nyeri County); Martha Karua (who ran for the Kirinyaga County governor’s seat); Mutahi Kagwe (who ran for the senator’s seat in Nyeri County); Ndung’u Gethenji (the former MP for Tetu, Nyeri County); Peter Kenneth (who ran for the Nairobi County governor’s seat); Peter Munya (who ran for the Meru County governor’s seat); Rachel Shebesh (who ran for Women Representative in Nairobi County); and William Kabogo (who ran for the Kiambu County governor’s seat). “Kagwe, Kenneth and Munya are still so angry with Ruto, they won’t even talk to him,” said the MP.

Some of these politicians ran as independents after forming the Kenya Association of Independent Candidates (KAIC) led by Kabogo and deputised by Gethenji. “These are the people who will form the bulwark of opposition to Ruto in the Mount Kenya region. Take it from me, the Jubilee Party, as currently constituted, will not be there in 2022,” said the MP. Hardly surprising in a country where political parties are vehicles for convenience and conveyance and where new parties are formed during every election season.

The Mount Kenya MPs are not only privately accusing President Uhuru of political inaction, “they are also nervous and suspicious of him,” said the MP. “They know President Uhuru, on his own, cannot out-think both Raila and Ruto. They therefore cannot hitch their wagon in his current party. They are also scared of voters’ backlash: it cannot be that the country must be ruled by two communities, passing the presidential race baton to each other, back and forth…that at some point must stop, because it’s unacceptable by all standards.”

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Mr Kahura is a senior writer for The Elephant.

Politics

The March of Folly: Why the Referendum Will Bury the 2010 Constitution

Proposals by politicians and church leaders to amend the 2010 Constitution serve narrow interests and could lead to further polarisation and exclusion in the country, argues CANON FRANCIS OMONDI.

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The March of Folly: Why the Referendum Will Bury the 2010 Constitution
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“To the man who only has a hammer, everything he encounters begins to look like a nail.” – Abraham Maslow.

The fervour for constitutional change among a section of the political class and national leadership has gained momentum. A cursory view of Kenya’s history indicates a propensity to revert to legal solutions for Kenya’s political problems or moral dilemmas. Our history demonstrates that tinkering with the constitution to accommodate the challenges facing the political class has rarely borne any fruit.

Seldom have we delved into successes political solutions afford us. The “handshake” of 9 March 2018 between Raila Odinga and Uhuru Kenyatta, they say, swerved Kenya away from the edge of the precipice of chaos. It took intriguing political turns and twists to cut the deal. Inclusivity! The courageous turns by President Kenyatta and Hon. Odinga, and the twisted, and cryptic yet surprising pact, somersaulted their lost and bewildered supporters into alignment in the new arrangement. So, Kenya is at peace today, after the grueling duel of the 2017 election, through a political solution.

But there are whispers among politicians that Kenyatta and Raila are threading the needle to solidify the handshake by anchoring it in the constitution and inevitably forcing a referendum on Kenyans. They should have stayed on this path and should never have capitulated. What a window of opportunity, not only to engrave an alternative approach to resolving our political complications, but also to transform and sanitise our politics.

The obtuseness with which this referendum is being mooted raises questions. In the early 1990s, we knew the reasons for holding a referendum. Though a referendum was not held then, public opinion and donor pressure forced President Daniel arap Moi to repeal Section 2A of the constitution (the section that made Kenya a one-party state). This precipitated the multiparty political dispensation that led to the proliferation of political parties and the eventual ouster of Moi’s Kanu party in 2002.

But there are whispers among politicians that Kenyatta and Raila are threading the needle to solidify the handshake by anchoring it in the constitution and inevitably forcing a referendum on Kenyans.

Similarly, the 2010 referendum on the new constitution was clear: Yes for change, No for the status quo. The push was to overhaul the old constitution to reflect our new realities. The changes sought included bringing voices on the margins to the centre and to institute a dramatic shift in how to share power and resources. Genuine inclusivity. For this, we found the formula in a devolved structure of government. The new constitution guaranteed a Bill of Rights that guaranteed freedom of expression, among other fundamental rights. Hence the Constitution of Kenya 2010 was promulgated.

NCCK’s proposals to amend the constitution

We live in an enchanted country under a spell of the referendum for a change in the law. The National Council of Churches of Kenya (NCCK) made a proposal mainly seeking to change the executive, which appears to voice certain politicians’ whispers. The NCCK is seizing the moment to inject into the constitution some issues they could not include during the last referendum.

During the NCCK Executive Committee meeting on 27th February 2019, participants reached the conclusion to propose a wide range of changes to the 2010 Constitution. They suggested amending Article 130 of the 2010 Constitution by inserting the words “Prime Minister” and “two Deputy Prime Ministers” immediately after the words “Deputy President”.

They also recommended inserting a new clause (3) to read: “130 (3) The President, Deputy President, Prime Ministers, and Deputy Prime Ministers, shall all be from different ethnic groups.” They recommended giving both the Prime Minister and Deputy Prime Ministers executive authority.

During the NCCK Executive Committee meeting on 27th February 2019, participants reached the conclusion to propose a wide range of changes to the 2010 Constitution. They suggested amending Article 130 of the 2010 Constitution by inserting the words “Prime Minister” and “two Deputy Prime Ministers” immediately after the words “Deputy President”.

NCCK also recommended amending Article 131 (1) (b) by inserting the words “Prime Minister and Deputy Prime Ministers” immediately after the words “Deputy President”. They reasoned that introducing the Prime Minister and Deputy Prime Ministers as members of the National Executive will enshrine greater inclusivity in the government’s structure. The Prime Minister, Deputy Prime Ministers, and Cabinet Secretaries are to be accountable to both the President and Parliament through the amendment of Article 153 by: a. Inserting in Clause (2) the words “Prime Minister, Deputy Prime Ministers” immediately before the words “Cabinet Secretaries” and b. Inserting in Clause (2) the words “and Parliament” immediately after the word “President”.

Reforming the executive structure is evidently the thrust of the NCCK’s recommendations. I have since found out that the NCCK conducted several seminars at the grassroots to garner support for the referendum. But in many places, the membership refused to drink this “Cool Aid”. They rejected these recommendations.

Ambassador Francis Muthaura, the former Head of Public Service, while making a submission during a Building Bridges Initiative (BBI) event on 10 July 2019, suggested bold changes to the 2010 Constitution. Amb. Muthaura rooted for a power-sharing government of the two protagonists, with Cabinet positions shared equally once in power, an arrangement reminiscent of President Mwai Kibaki’s and the then opposition leader Raila Odinga’s Grand Coalition Government of 2008. He proposed that both the winner and the runner-up candidates in the presidential election share in a coalition government as the President and the Prime Minister, respectively.

“Once the results of the presidential elections are announced by the electoral commission, the candidates having the highest number of votes and the second-highest number of votes will form a government of national coalition,” he said.

He further suggested that in Parliament, the president’s party should provide the leader of government business, while the prime minister’s party should provide the deputy leader of government business, which will make the government more consultative rather than the confrontational.

Enter Punguza Mzigo

The Third Way Alliance of Dr. Ekuro Aukot caught many by surprise when it got the Independent Electoral and Boundary Commission (IEBC)’s nod for a referendum. With over 1 million signatures, they had the people’s mandate for their reform bill, dubbed “Punguza Mzigo” Bill 2019.

At the core of the bill is relieving the public financial burden by trimming the government’s runaway expenditure. The proposed amendments aim to deal a fatal blow to corruption and theft of public funds, to redistribute national resources to the ward levels – which is a shift from the constituency level, as we know it today – and to rearrange presidential terms to only one, but for seven years. True to its name, the Punguza Mzigo bill plans on drastic austerity measures in both the government and in the legislature, which its proponents argue will spur economic growth, and percolate prosperity to ordinary Kenyans. David Ndii, a leading economist in Kenya, submits that it won’t boost economic growth as many argue.

It is disingenuous of Dr. Aukot, one of the Committee of Experts who birthed the 2010 Constitution, to now propose to overhaul it without a clear audit of what Kenyans gained or lost after its promulgation. For instance, reducing the number of legislators undermines the key gains of the 2010 Constitution on the principle of representation. The rationale for the present arrangement outweighs the populist reasons of cost-saving of taxpayers’ funds. This is sheer populism that won’t remedy the appalling state of the masses. Why change the law, when these changes are achievable through fiscal discipline and robust economic policies?

I am sceptical about whether changing laws to expand the government for inclusivity, either as advocated by the NCCK or Amb. Muthaura, reaches the depth of the issue. These proposals risk engraving tribal politics in our laws, which breed exclusion. What the NCCK suggests will distribute executive positions based on one’s tribe, while Muthaura’s winner and runner-up sharing positions may tie the positions to the same political groupings.

It is disingenuous of Dr. Aukot, one of the Committee of Experts who birthed the 2010 Constitution, to now propose to overhaul it without a clear audit of what Kenyans gained or lost after its promulgation.

Given how party politics in Kenya are tribally bent, these proposals may lead to an eternal exclusion of some communities. If we allow the changes as suggested, we would give birth to a bastard democratic order, with a government without the checks and balances that a credible opposition can offer. Doubtlessly, the changes will re-concentrate political power around a certain group in power and this will eventually bury the 2010 Constitution.

We may assume that the malaise is because of the defects in our institutions. Yet the problem lies elsewhere. A sound constitution would need a corresponding sound “structure”. For instance, the Constitution of the Soviet Union also granted a Bills of Rights, but that did not prevent the centralisation of power in one person or in one party. And as soon as that happened, the constitution was dead. The party or the chief became supreme. Even banana republics have sound constitutions protecting rights and promoting inclusivity, but most of them end up being mere words on paper.

If we allow the changes as suggested, we would give birth to a bastard democratic order, with a government without the checks and balances that a credible opposition can offer. Doubtlessly, the changes will re-concentrate political power around a certain group in power and this will eventually bury the 2010 Constitution.

Inclusivity cannot be achieved through a referendum 

Addressing the US Senate Judiciary Committee, the late Justice Antonin Scalia refuted that American “exceptionalism” was embedded in the US constitution, as many assumed. On the contrary, he argued, it was in the structure of its government, the independence of its judiciary and the bicameral legislature.

In this system, Scalia explained, “legislation passes one house [and] it doesn’t pass the other house; sometimes the other house is in the control of a different party; it passes both, and then this President, who has veto power, vetoes it. And they look at this and they say, ‘Ah, it is gridlock’.” This disagreement, he observed, is the key that provides the check and balances, and this is what makes American constitutionalism exceptional.

The “inclusivity” that supposedly came about as a result of the “handshake” between Raila Odinga and Uhuru Kenyatta or which is being proposed by the NCCK and Muthaura pays little attention to this kind of accountability. Rather, it blurs this vital element of democratic government. (To their credit, the drafters of the Punguza Mzigo Bill 2019 recognised the need to improve the checks-and-balances role of the legislature. They propose reforming the legislature to increase the power of the Senate as the Upper House and so improve the role of Parliament as a government watchdog and people’s representative.)

It is a cruel irony that we are now using a referendum to achieve inclusivity. A referendum, by its nature, is divisive. Every referendum we have held left us divided: In 2005, it was “Banana” or “Orange” groups. In 2010, it split us between the “Yes” and “No” camps. We have observed a referendum sorely dividing the United Kingdom, between “Brexiters” and “Remainers”.

In a referendum exists a tacit assumption that denounces those who are on the opposite side as enemies and this can lead to violence. With a referendum, we cannot walk the sensible middle of the road, or achieve compromise needed over complex social challenges, because it simplifies complex issues into sound bites. It hinders a thorough and factual debate over issues. Our leaders espouse referendums to gauge public opinion, while in reality, they are their tool to cause the public to parrot their untested ideas.

It is a cruel irony that we are now using a referendum to achieve inclusivity. A referendum, by its nature, is divisive.

The general tendency of a referendum is to inhibit an independent evaluation of issues against the general assessment of national interest by experts who would balance multiple interests. Further, it obstructs compromise by producing a result in which a majority, by any margin of votes, feels entitled to speak for the whole nation and the minority don’t count.

Fixing our politics

So, investing more in politics than the law remains our most viable option. During the BBC’s 2019 Reith Lectures, In Praise of Politics, (the retired Justice of the UK’s Supreme Court, Lord Jonathan Sumption, criticised the law’s expanding of the empire into our lives. He observed the law’s corroding influence on democracy, and argued that politics, not the law, holds the solutions for the crises in society. He warned, “Every human problem or moral dilemma can’t call for legal solutions.”

Justice Sumption makes the case for strengthening the political process through representation, which is the role of Parliament, for it is difficult for all citizens to vote over and decide over a matter. The masses often have insufficient data and information to reach an informed decision.

Besides, as Sir David Hume, a prominent figure of the 18th century’s Scottish Enlightenment observed, there is an incurable narrowness of soul that makes people prefer the immediate to the remote and to safeguard parochial rather than national interests. Sumption, therefore, supports taking this process away from the electors who have no reason to consider but a desire for the immediate and narrow opinion of their own. He insists that political decision-making should stay in the hands of politicians because they can accommodate the widest array of opinions and act in the national interest.

It’s a tragedy that our lawmakers are strangers to this principle of representation. At best, they only listen to the concerns of the constituents but do not promote among their constituents a broader view of public interest.

James Madison, in The Federalist Papers, made the strongest justification for representative politics, which he argued, is to “refine and enlarge the public views, bypassing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice, will be least likely to sacrifice it to temporary or partial considerations.”

Regrettably, our legislature operates as a creation of the executive, and/or their political party heads. Nothing goes without them saying so. Sir Edmund Burke, an Anglo-Irish politician, political theorist, and philosopher who served as a member of parliament reminds us, “Parliament was not a congress of ambassadors but its members were there to represent the national interest than the opinions of the constituents.”

We will remain torn apart by the submitted adjustments unless these motions undergo a process of refinement and enlargement through the broad workings of the legislative process. Here, such ideas are transformed from private persuasions at public hearings or at a local level, to the deliberative proceedings in Parliament. And from the contests and accommodation of interests in legislative committees to the representatives’ open declarations to their constituents.

The representation principle was intended to prevent such narrow interests and unjust views from determining public decisions. Thus the job of the representative is not to follow daily polls or sudden breezes in popular opinion, which Madison thought were too often the result of prejudice and partial interests. Rather, the representative should promote a consensus grounded in justice and the common good.

The Kenyan ordinary political process is murky and treacherous, devoid of true representatives. Can we fix this? We must demand deliberation within the legislature of the proposals by NCCK, Muthaura, Punguza Mzigo Bill 2019 and any others that will be put forward, and seek a two-way process of communication between the representatives and their constituents. Within this milieu of public communication and deliberation, perhaps a kind of civic education will take place. Maybe this then will contribute to forming and settling public opinion based on what is right, and therefore, will justify “the respect due from the government to the sentiments of the people.”

I opine that this madness to tinker with the code may become our “march of folly”. Mrs. Barbara W. Tuchman, in The March of Folly: From Troy to Vietnam, gives a stark warning on decisions leaders make without referring to the facts and which end up harming ordinary people. In some of her conclusions, she asserts that folly is sometimes caused by people’s ‘’wooden-headedness’’ or ignoring their earlier history. Just folly.

This is not a situation where leaders make an error in judgment due to ignorance; it is a situation where decisions are made out of foolishness. Mrs. Tuchman sets out three conditions for such decision-making. First, the leaders and those responsible were warned about the potential for a disaster. Second, there were workable alternatives to the course they took. Third, it was groups, not individuals, who perpetrated the foolishness.

Mrs. Tuchman supported her assertions with four major acts of folly in human history. These are: 1) the Trojans’ decision to move the Greek horse within the walls of their city; 2) the refusal of six Renaissance popes to arrest the growing corruption in their church and their failure to recognise the increasing restiveness that would lead to the Protestant secession; 3) the British misrule under King George III that eventually cost England her American colonies; and 4) America’s mishandling of the conflict in Vietnam.

We must halt urgently this referendum march. For there is nothing new about our present crisis and the suggested constitutional reforms are usually irrelevant to the problem that provoked them. The peril Kenya faces lies not in our laws or institutions, but in the decline of our character as a community. Without a powerful sense of community, even the best laws and institutions will remain a dead letter.  The facade will stand, but there will be nothing behind it. The rhetoric will be loud, but it will be meaningless.

And the fault will be ours.

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Cambridge Analytica and the 2017 Elections: Why Has the Kenyan Media Remained Silent?

Did President Uhuru Kenyatta and his Jubilee party win the 2013 and 2017 elections fairly, or did a dubious UK-based consultancy company help them win by using unethical means? RASNA WARAH explores possible reasons why the Kenyan media has remained mum about Cambridge Analytica despite the international uproar about its use of dirty tactics.

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Cambridge Analytica and the 2017 Elections: Why Has the Kenyan Media Remained Silent?
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In the run-up to the August 2017 elections, the Star newspaper carried a short news item in its inside pages that stated the Jubilee Party had contracted a company known as Cambridge Analytica to help it win the elections. Most of the other Kenyan mainstream media outlets ignored the story, which seemed strange considering that the company was embroiled in various scandals that suggested that it had manipulated British voters in the Brexit referendum, and that it might have used unethical means to get Donald Trump elected as President of the United States in 2016. Steve Bannon, who was then Trump’s chief strategist, was the company’s Vice President at the time of the Brexit referendum.

The company, owned by billionaire Robert Mercer, was known for running campaigns that amounted to “psychological warfare”. Some claimed that the data mining company’s operations might even be construed as being illegal as they crossed boundaries of privacy that should not be allowed in a democracy.

I subsequently wrote in my column in the Daily Nation about how this company might be manipulating voters in the 2017 Kenyan election, but my column did not generate much interest among my fellow journalists, even though I had warned Kenyans that this controversial company’s dirty tactics amounted to social engineering and could lead to the spread of hate speech and fake news during the election campaign period.

Not even an explosive exposé of the unethical practices employed by the company, which was published a year later in the UK’s Guardian and Observer newspapers, led to further investigations by the Kenyan media or by Kenya’s electoral body, the Independent Electoral and Boundaries Commission (IEBC). It was as if Cambridge Analytica, despite its tarnished reputation, had successfully managed to buy the silence of Kenyan journalists and electoral officials.

The Kenyan media’s puzzling lack of interest in Cambridge Analytica’s dirty tactics was mind-boggling. No Kenyan journalist or electoral body official investigated whether the company was behind the uthamaki movement that saw Uhuru Kenyatta win by a landslide in Central Kenya. No one bothered to find out whether the company was behind a social media campaign to instil fear about a Raila Odinga presidency – and Luos in general – even though undercover reporters in the UK had recorded the company’s top managers admitting that they dug the dirt on their clients’ political opponents, and often hired spies and sex workers to obtain potentially embarrassing information. What dirt did they have on Kenya’s opposition leaders? And was the fear of this dirt being exposed a reason for the “golden handshake” between Raila Odinga and Uhuru Kenyatta last year? Again, no one to date has bothered to find out.

Dirty tactics

The unethical tactics employed by Cambridge Analytica were revealed last year by the whistleblower Christopher Rylie, who claimed the company harvested Facebook data from millions of people around the world and then targeted them with political messages and misinformation without their knowledge or consent.

This was confirmed by a series of articles known as “The Cambridge Analytica Files” published in the Observer, which showed that Cambridge Analytica used data from sites such as Facebook to manipulate people’s emotions, and get them to vote in a particular way. One former employee told journalist Carole Cadwalladr — the author of the series — that the aim of the company was to capture every voter’s information environment, from magazine subscriptions to airline bookings, and to use this data to craft individual messages to create an “alt-right news and information ecosystem”.

The unethical tactics employed by Cambridge Analytica were revealed last year by the whistleblower Christopher Rylie, who claimed that the company harvested Facebook data from millions of people around the world and then targeted them with political messages and misinformation without their knowledge or consent.

Cadwalladr says that Cambridge Analytica’s tactics were not just about combining social psychology with data analytics – they were much more sinister. The company was not ideologically neutral and had strong links with well-heeled right-wing groups and politicians in Britain, the United States, Russia, Lithuania, Latvia, Ukraine, Iran and Moldova. Its campaigns thus propagated a distinctly ultra-right agenda. Later investigations into the Trump campaign’s alleged links to Russia prior to the 2016 elections also raised the question about whether Cambridge Analytica facilitated these links.

These revelations led to Facebook CEO Mark Zuckerberg admitting that 87 million Facebook users’ data had been mined. He was subsequently hauled before the US Congress and fined $5 billion for privacy violations. Britain’s parliament referred to Facebook as “digital gangsters” and the UK government has since started an antitrust inquiry into the company. France, Australia, Japan, India, New Zealand and Singapore are also considering passing new laws to regulate giant Internet platforms like Facebook.

The Cambridge Analytica scandal not only impacted the fortunes of Facebook, whose share prices plummeted, but also Cambridge Analytica, which went bankrupt and was forced to shut down. However, in Kenya, no inquiry into Facebook or Cambridge Analytica took place and no laws or regulations to protect people’s online privacy have been passed.

Why now?

Having ignored this story for so long, it seems odd that now, nearly two years after the 2017 election, the Daily Nation’s editors feel that news about a high-profile British MP admitting to the UK’s Channel 4 News that she worked for Cambridge Analytica in Jubilee’s election campaign in 2017 deserves front-page treatment. In its 17 July 2019 edition, the Daily Nation splashed the story of Alexandra Phillips telling a journalist that she was secretly employed by Uhuru Kenyatta as a political communications consultant. The newspaper also carried a photo of Phillips donning a Jubilee cap. In the leaked video clip where she admitted to working for Jubilee, Phillips also said that she loved Kenya. (Why wouldn’t she? Her contract was valued at £300,000 per month and her job description, she claims, including writing speeches for Uhuru.)

The Jubilee Party denied any links with Cambridge Analytica, but a few days later, in its Sunday edition, the Nation revealed that it had seen leaked emails that linked State House operative Nancy Gitau with the disgraced company. Apparently all communication between Cambridge Analytica’s consultants working in Kenya had to be copied to Ms. Gitau, who also offered suggestions on how the election campaign should be conducted.

Why did this story merit newspaper space and why now? Perhaps it has to do with the politics of the 2022 elections. Uhuru Kenyatta will not be running in these elections, as he will have come to the end of his second and final term. Moreover, the Jubilee Party is no longer what it was, with the in-fighting between the two principal parties of this coalition becoming more vicious by the day. So a story like this is not likely to have any significant impact on the 2022 elections. And it will also have no effect on the fortunes of Cambridge Analytica, which has already closed shop, thanks to the many scandals it was embroiled in. Which is why it seems odd that the Nation chose to highlight this story now.

The Jubilee Party denied any links with Cambridge Analytica, but a few days later, in its Sunday edition, the Nation revealed that it had seen leaked emails that linked State House operative Nancy Gitau with the disgraced company.

But what the story did reveal was the extent to which Uhuru Kenyatta and his Jubilee Party were willing to go to win the 2013 and 2017 elections. Uhuru is not averse to paying foreign PR companies huge amounts of money to manipulate voters and the media. In the run-up to the 2013 elections, when he was facing charges of crimes against humanity at the International Criminal Court (ICC), he hired the services of a London-based PR firm called BTP Advisers to manage his election campaign. The PR company, whose slogan is “We deliver campaigns that change hearts and minds”, advised Uhuru to use aggressive propaganda tactics that cast the ICC as racist and its supporters, including local civil society organisations (which his propagandists dubbed “the evil society”), as puppets of the West.

On its website, BTP Advisers revealed the winning strategy that delivered the presidency to Uhuru in 2013: “By exposing the weak and flawed nature of the ICC case against him, we made the election a choice about whether Kenyans would decide their own future or have it dictated to them by others.” By framing the ICC cases as a sovereignty issue for Kenyans, the strategy cleverly undermined both the ICC and the case against Kenyatta. As fate would have it, the ICC would later drop charges against Kenyatta and his fellow indictee and running mate William Ruto due to lack of sufficient evidence.

Uhuru also hired a group of bloggers and journalists dubbed “The State House Boys” who carried out an aggressive propaganda campaign on social and other digital media to whitewash Uhuru and his party. The so-called Presidential Strategic Communications Unit was built by Johnson Sakaja – a young man with political ambitions who would later become Senator for Nairobi County – who recruited the likes of Dennis Itumbi and David Nzioka to build Brand Uhuru. Although this roguish bunch of propagandists have since been sidelined and now work for Deputy President William Ruto, their vitriolic rhetoric and misinformation campaign had a lasting impact on the 2013 and 2017 elections.

Digital surveillance

Did President Uhuru Kenyatta and his Jubilee party win the 2013 and 2017 elections fairly, or did a UK-based political consultancy company called Cambridge Analytica help them win by using unethical means? This question surfaced again after the release of an explosive documentary aired on the UK’s Channel 4 News in 2018 that showed the managing director of the company, Mark Turnbull, admitting to stage-managing the last two elections in Kenya, from rebranding the Jubilee party twice and even writing its manifesto and speeches. In the Channel 4 News documentary, Turnbull is shown telling undercover reporters that the company uses people’s deep-seated hopes and fears to manipulate them. “It is no good fighting an election campaign on the facts, because actually it is all about emotion,” he said.

The question Kenyans must ask is whether Cambridge Analytica undermined our democracy and made a mockery of our elections. Is the company responsible for deepening ethnic divisions in our society? The deliberate manipulation of people’s fears and emotions also raises ethical questions. In a country like Kenya, where ethnic-based tensions have led to violence and bloodshed in the past, was Cambridge Analytica being highly irresponsible by stoking these tensions?

Other African countries have been more diligent about employing companies that create divisions and disseminate misinformation. For example, in the wake of the corruption and “state capture” scandals involving former South African president Jacob Zuma and the notorious Gupta family, the UK-based PR company Bell Pottinger was accused of initiating a cynical campaign on behalf of the Guptas that pitted South Africa’s whites against blacks. When details of the “economic apartheid” campaign were exposed, the PR company lost credibility and collapsed. But in Kenya, not a single investigation has been conducted to expose the unethical actions Cambridge Analytica was involved in that might have impacted our elections and polarised the country along ethnic lines.

The question Kenyans must ask is whether Cambridge Analytica undermined our democracy and made a mockery of our elections.

Going forward, can we expect similar campaigns in the run-up to the 2022 election? Are there other companies such as Cambridge Analytica that are marketing themselves to Kenyan politicians? Such companies have found a ready market in poor and corrupt countries where leaders will go to any length (and pay millions) to win elections. Might Ruto, the presidential candidate in 2022, also hire a company like Cambridge Analytica for his election campaign? Ruto has loads of money and the contest in 2022 will very likely be a high stakes game. Cambridge Analytica may have closed shop, but other companies might be waiting in the wings to make money during the 2022 election campaign period? Might they now have their eyes on Ruto? And will the Kenyan media be more diligent about such companies or will they wait for foreign media to expose them?

We must also ask whether the introduction of the Huduma Namba (the newly rolled-out National Integrated Identity Management System) in the absence of regulations that protect privacy could also impact the elections. Could the personal biometric and other data that has been captured by the Huduma Namba be manipulated by electoral officials? Was electoral official Chris Msando’s murder prior to the 2017 elections linked to his knowledge of such a scheme?

We live in scary times. Information technology, which was once viewed as “the great leveler” that would deliver true democracy to the world’s people, is now being used to manipulate elections, subvert democracy, and promote authoritarianism.

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Dying for Justice: Who Killed Oscar Kingara and George Paul Oulu?

Cases of extrajudicial killings by police and other state security agents are commonplace in Kenya, where such murders often do not lead to prosecution or justice for the victims. ISAAC OTIDI AMUKE revisits the case of two prominent human rights defenders who were killed in 2009 in broad daylight on a Nairobi street.

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Dying for Justice: Who Killed Oscar Kingara and George Paul Oulu?
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Whenever one drives along Ring Road in Kilimani, and glances across the hedge of the Kileleshwa Police Station, where several vehicles are parked inside the compound, one is likely to spot an abandoned white Mercedes Benz E200, registration number KAJ 179Z, with a missing rear windshield, The last time the Mercedes Benz moved before it was towed to the police station was when it was forcefully shoved by enraged University of Nairobi students into the entrance of Hall 2, one of their hostels located adjacent to State House Road. Pushing the Mercedes Benz onto the sloped university terrain wasn’t difficult. It had stood stationary on State House Road, its occupants shot dead.

It was Thursday 5 March 2009 at about 6 p.m when Oscar Kamau Kingara, the Executive Director of the Oscar Foundation Free Legal Aid Clinic Kenya (OFFLACK), and George Paul Oulu, also known as GPO, his Communications and Advocacy Officer, were caught in evening Nairobi traffic on State House Road. One would expect to run into a little traffic at that hour and place. However, what the duo were unaware of, as narrated by a number of university students who witnessed what next transpired at close range, was that the gridlock was stage-managed.

‘‘A group of us were coming from lectures that evening,’’ Mathew (not his real name) told me. ‘‘Others were walking from the hostels towards town and the main library. The killers acted as if we were nonexistent. We saw everything.’’

A Mitsubishi Pajero drove out of a University of Nairobi gate, the one located right next to Hall 11 in front of one of the university’s clinics, pretending to be joining State House Road. It then stopped midway on the road once it had cut off the flow of traffic, its occupants staying put, as if unperturbed by the intentional inconvenience they were inflicting on the now slowly building up stream of vehicles coming down from the State House Girls School side. The Pajero rudely cutting off traffic was the first red flag for the students.

‘‘A group of us were coming from lectures that evening,’’ Mathew (not his real name) told me. ‘‘Others were walking from the hostels towards town and the main library. The killers acted as if we were nonexistent. We saw everything.’’

‘‘We saw the Pajero interrupting traffic, but didn’t think much of it,’’ said Andrew (not his real name) who was part of Mathew’s group from the lecture halls. ‘‘We imagined it was one of those big-car uncivil Nairobi drivers.’’

One of the vehicles the Pajero forced to stop was the Mercedes Benz. Kingara was its driver, Oulu the passenger. In under a generous estimate of three minutes of the students encountering the Pajero, the students heard a series of loud gunshots. By this time, they had walked into the Lower State House residential unit, which holds Halls 10, 11, 1 and 2. Knowing the frosty relationship between University of Nairobi students and the police, the gunshots instantly triggered anxiety among the students already settled inside their hostel rooms. They all started screaming from their windows, expecting the worst. Had the police shot one of their own?

Cutting the University of Nairobi’s main campus halls of residence right into two – Lower State House and Upper State House clusters of hostels – students from both sides of State House Road were now scrambling in their hundreds out of windows, confused and wanting to catch a piece of the action. Looking at the under 100 metre distance between the huge tree behind Hall 11 where the shooting took place and the little gate from where the Pajero had stalled, the students who had the best vantage point to witness everything were those looking out from the upper floors of Halls 11 and 9, the two male student hostels sandwiching the scene.

‘‘The gunshots were so loud, which made us suspect the shooting was happening within the university’s vicinity,’’ James (not his real name), a third year Bachelor of Arts Hall 9 resident told me. ‘‘It wasn’t difficult to locate the Mercedes Benz from my window on the second floor. It was the only vehicle with men hovering around it.’’

After the first gunshots, students with a quicker reflex directed their attention to the scene and caught sight of the two men dressed in similar suits finishing the job. Occupants of nearby vehicles didn’t dare step out, possibly paralysed by the display of impunity by the shooters who had the audacity to summarily execute the driver and his passenger in broad daylight right in the environs of the University of Nairobi, which is known for its protests.

‘‘After shooting the vehicle’s occupants,’’ James from Hall 9 went on, ‘‘the shooters in identical suits shot in the air before slowly strolling towards a minivan that was about three vehicles behind the Mercedes Benz. They got into it, and as it was turning around before driving away, my friends and I noticed its driver was wearing what resembled a police uniform. Our observation would later be corroborated by other students.’’

For a long time, whether having beers at Senses or standing in groups outside the library, the tens of student witnesses I have interviewed spoke about that Thursday evening in surgical detail, piecing together minute bits of information crowd sourced from whoever saw anything, eventually managing to reconstruct the scene.

‘‘We all saw different bits of whatever happened that evening,’’ a now thirty-something Mathew told me. ‘‘But when we pieced everything everyone saw together, which became the widely accepted narrative, our conclusion was that once the Pajero created a temporary traffic jam, the men in identical suits disembarked from the minivan with their guns. They then looked inside each of the vehicles ahead of the minivan, until they got to the Mercedes Benz. On identifying the two men as their targets, they summarily executed them.’’

‘‘I’ve been told by a Hall 9 student that the driver of the minivan was wearing a military fatigue jacket, the ones worn by the police. Did any witness you interacted with share the same view?’’ I asked Mathew.

‘‘I’ve heard the same thing before from third parties,’’ Mathew replied, ‘‘but I can’t confirm its veracity.’’

However, what the students didn’t need to reconstruct was what happened after Oulu and Kingara were shot.

‘‘Not too long after those in Halls 9 and Hall 11 watched the men in suits in action,’’ Mathew recollected, ‘‘those of us from the lecture halls ran to State House Road and surrounded the scene. We wanted to see who had been shot. That is when we heard another gunshot. As we dispersed temporarily, two men walked from the direction of the Pajero, wanting to access the Mercedes Benz, each holding a pistol. We watched them ransack the pockets of the two shot men before taking documents and a laptop from the back seat.’’

‘‘Can you identify the men if you saw them or their photos?’’ I asked Mathew.

‘‘I don’t want to answer that,’’ Mathew said. ‘‘I don’t like the idea of killers thinking I can recognise them.’’

According to Mathew, the men from the Pajero were in no hurry. Going by that evening’s series of events, the students arrived at an inescapable conclusion: the killers were policemen. No other logical conclusion could explain such a display of meticulous organisation and absolute impunity – the Pajero cutting off traffic, the men in suits shooting the Mercedes Benz occupants, and finally the men from the Pajero taking their time at the scene as if crossing the T’s and dotting the I’s.

It was when the two men were milling around the scene of the killing that the group of students tried to engage them in small talk.

‘‘Mbona humuwabebi?’’ a student asked as the men left the scene. Why aren’t you taking away the bodies?

‘‘Wengine watakujia,’’ one of the men casually replied, unruffled. Others will come to clear the scene up.

After the men in the Pajero left, the students realised that Oulu was still breathing. Unlike Kingara, whose death best illustrates the term summary execution (he was shot at least three times in the head, possibly in quick succession, and his body remained in an almost upright position in the driver’s seat) Oulu had used his left hand to block a bullet, which went through his wrist and through his head. Seeing that the university sanatorium was less than 100 metres from the scene, daring students removed Oulu’s body from the vehicle, but before they could move beyond 20 metres, they noticed he had stopped breathing.

Just before nightfall, a few senior students managed to positively identify Oulu. He had been a celebrated Vice Chairman of the Students Organisation of Nairobi University (SONU). On leading a protest in 2004 against tuition fee increment, he had received a 1,000-day or three academic year suspension. He came back to the university in 2007 to complete his degree course in Mathematics and Economics. He hadn’t graduated by the time he was shot in March 2009.

The students’ original police-and-robbers theory was disproved. One of the victims was, in fact one, of their own, as was initially feared when they first heard gunshots. Knowing the University of Nairobi students’ modus operandi, State House Road was immediately shut at the first sign of protest. News had to get to the president, who lived barely 500 metres away.

It was under these circumstances that the students shoved the Mercedes Benz into Hall 2. Thereafter, Kingara’s bled-out body was hidden under a staircase. Wanting to forcefully retrieve the body, anti-riot police engaged in an overnight battle with students. In the process, a first-year student, Edwin Gesairo, was shot dead.

‘‘I am the one who hid Kingara’s body,’’ a former student told me. ‘‘We were going for an all-out war.’’

But, some still ask, were the students even half right in their prima facie police-and-hardcore-wanted-criminals hypothesis? Who were Kingara and Oulu, and what had they been doing that might have led to their violent and bloody death?

***

The answer came in agenda item three during the May 2009 11th session of the United Nations Human Rights council in Geneva. In an addendum to his presentation, Prof. Philip Alston, the UN’s Special Rapporteur on extrajudicial, summary or arbitrary executions, confirmed that Oulu and Kingara were among members of civil society with whom he had met during his February 2009 visit to Kenya to investigate rampant extrajudicial killings by death squads within the security system and the police. In affirming the student’s suspicion that the killing of Oulu and Kingara was premeditated assassination, Alston stated:

‘‘Moreover, we urge your Excellency’s Government to expeditiously carry out an independent investigation into the killing of Oscar Kamau Kingara and George Paul Oulu. While we do not in any way prejudge the question of the responsibility for this assassination, it is inevitable under the circumstances that suspicion should fall upon the Kenya Police.’’

However, if one were to argue that the police per se weren’t involved in the assassination or shouldn’t be the primary target of investigations, as alluded to by the Special Rapporteur’s statement, then the outlined mandate within which Prof. Alston was basing his request carried a more comprehensive scope of what was meant by his suspicion of the state’s complicity. He was asking for an investigation into:

‘‘Deaths due to the attacks or killings by security forces of the State, or by paramilitary groups, death squads, or other private forces cooperating with or tolerated by the State; death threats and fear of imminent extrajudicial executions by State officials.’’

There was no doubt that Kingara and Oulu had made enemies in high places. But did they, eighty-four days before their slaying, sign their own death warrants?

On New Year’s Day 2009, the Oscar Foundation wrote a letter to the Office of the Chief Prosecutor at the International Criminal Court (ICC) at The Hague, calling for investigations into suspected state-sponsored extrajudicial killings targeting alleged members of Mungiki – the predominantly Kikuyu cultural and sometimes spiritual grouping, which from time to time ventured into the political sphere, and which was in other instances accused of criminality. Mungiki was accused of enforcing a parallel taxation regime in the public transport sector in Nairobi and Central Kenya, and of running a shakedown racket in informal settlements in Nairobi, where it demanded payment in exchange for protection of businesses.

‘‘I am the one who hid Kingara’s body,’’ a former student told me. ‘‘We were going for an all-out war.’’

Fashioned as Mau Mau reincarnate, Mungiki swept through Central Kenya in an unprecedented manner, a form of peasant uprising against the moneyed and ruling Kikuyu elite, which at the time controlled the levers of state power. The group was condemned as being some sort of loose-cannon ragtag militia prone to extortionist tendencies, a ready gun for hire for politicians, sometimes including suspected state actors. It was therefore a messy, complicated affair, where it now appeared its leadership and membership – who knew too much and became unruly according to the powers that be – had become a liability to the political and security establishments. The extrajudicial killings of Mungiki members came after its members were suspected to have been deeply involved in revenge attacks during the 2007/2008 post-election violence, hence resulting in extrajudicial and enforced disappearances of some within its ranks. It was therefore anyone’s guess as to who had authorised the mopping up of Mungiki.

On New Year’s Day 2009, the Oscar Foundation wrote a letter to the Office of the Chief Prosecutor at the International Criminal Court (ICC) at The Hague, calling for investigations into suspected state-sponsored extrajudicial killings targeting alleged members of Mungiki…

The Oscar Foundation’s audacious request to the Office of the Chief Prosecutor at the ICC was for warrants to be immediately issued against the President of the Republic of Kenya, Mwai Kibaki, the Minister of Interior, Prof. George Saitoti and his outspoken predecessor John Michuki, and the Commissioner of Police, Maj. Gen. Hussein Ali, alongside his subordinates who were allegedly directly linked to extrajudicial killings and enforced disappearances in Kenya.

The timing of the letter couldn’t have been worse. In January 2009, the Kenyan political establishment was jittery. There were rumours of probable indictments of prominent Kenyans by the ICC, with elements within Mungiki being perceived as likely corroborators in sections of the prosecution’s evidence, which could be used against leading political players implicated in the violence following the 2007/2008 post-election violence – violence where over 1,200 lives were lost and over half a million citizens got displaced in under two weeks. The Oscar Foundation request to ICC’s Chief Prosecutor, Luis Moreno Ocampo, asking him to direct his investigative torch towards Kenya, seemed like an affront to the political establishment.

This letter was followed by Kingara’s and Oulu’s presentation of evidence on extrajudicial killings in February 2009 to the UN’s Prof. Philip Alston in a public event at the United Nations Office in Gigiri, Nairobi. Feathers were surely ruffled.

***

The Oscar Foundation wasn’t a huge organisation. Run from a small but tastefully furnished rented office in China Centre on Nairobi’s Ngong Road, the organisation’s operations were pretty specific – to document cases of extrajudicial killings and enforced disappearances, and to offer free legal aid to families of victims of the same. The partitioned office had two sections, the first one filled with thousands of files neatly arranged in a series of wall-to-wall cabinets surrounding an open plan office for paralegals. The second partition was where Oulu and Kingara operated. It was a lean, mean team causing the state considerable discomfort.

However, the dark cloud hanging over the Oscar Foundation was that it was a cover for Mungiki. On the morning of 5 March 2009, the day Oulu and Kingara were killed, the Government of Kenya’s spokesman, Dr. Alfred Mutua, issued a scathing attack on the organisation, repeating allegations that it was a conduit through which Mungiki received foreign aid and laundered money. In a move which would later come back to haunt the state, Dr. Mutua issued a not-so-veiled threat against the organisation, promising that the state would act firmly on Mungiki and its sympathisers. Less than 12 hours later, Oulu and Kingara were dead.

***

Within civil society, there were murmurs that a plausible trigger for the assassination of Oulu and Kingara was the abrasive nature of their approach to activism. For instance, on the day of their shooting, the duo had paralysed public transport on major routes in Nairobi. They worked with matatu touts and drivers who went on a go-slow in solidarity with the families of those within their ranks who had been killed on suspicion of being members of Mungiki. It wasn’t the first time the Oscar Foundation had coordinated such a protest.

‘‘Kingara owned this huge roadshow truck on which he displayed life-size images of the president and a number of cabinet ministers, all of whom the accompanying texts were effectively calling murderers,’’ a civil society executive who wished to remain unnamed told me in Nairobi. ‘‘That was extremely audacious.’’

Was the Oscar Foundation a cover for Mungiki, or was it that since the majority of its clients (families and friends of those suspected of having been summarily executed by the state) were members of Mungiki, therefore the organisation and those it served were conflated into one? This will remain a matter of conjecture, since the Kenyan state has never released evidence to prove the claim. That the state declined a formal offer by the United States Ambassador to Kenya to have the FBI join in on the investigations into the assassination of Oulu and Kingara – among other pointers towards possible complicity – continues to fuel the theory that very highly placed elements within government had something to do with the killing of the two human rights activists.

To date, the assassination of Oulu and Kingara remains unresolved.

***

The killing of Oulu and Kingara shook the Kenyan human rights fraternity to the core. It was no longer a question of human rights defenders receiving empty threats; death by execution was officially on the cards.

‘‘The most profound case I have ever encountered in the defence of human rights defenders has to be the assassination of Kingara and Oulu,’’ Sam Mohochi, a lawyer and human rights defender who at the time of the killings was the Executive Director of the Independent Medico-Legal Unit (IMLU), told me. ‘‘I made a deliberate attempt to escalate the matter legally, but one of the families kindly requested that we shouldn’t.’’

IMLU had been one of the few lone voices in the wilderness speaking against extrajudicial killings, which were backed by its numerous autopsy reports. In what may appear to be as a stroke of genius, IMLU combined medicine and the law, somehow playing the role of Kenya’s non-existent coroner at a time when doing such wasn’t mainstreamed.

The killing of Oulu and Kingara shook the Kenyan human rights fraternity to the core. It was no longer a question of human rights defenders receiving empty threats; death by execution was officially on the cards.

As Executive Director, Mohochi found himself having to stick his head out several times. He recalls that in December 2008, on the sidelines of the United Nations Human Rights Council meeting in Geneva, he met Prof. Philip Alston and his assistant Sarah – now a professor in New York – who told him that finally, the Kenyan government had agreed for the Special Rapporteur to pay Kenya an official visit. Prof. Alston was therefore asking for support. When Mohochi got back to Kenya, he started readying things.

‘‘I told them they can do their preparations,’’ Mohochi told me, ‘‘and that on our end, we would provide them with suggestions on which organisations they should consult, and plan for which victim groups they would meet. The fact that Alston was having meetings at the Kenya National Commission on Human Rights or using church facilities whenever he went outside Nairobi, were all very deliberate choices from our end, much as we weren’t part of his mission. The only thing I did was to invite Alston’s interlocutors, including Kingara.’’

According to Mohochi, he hadn’t agreed with Kingara, especially on the claim by the Oscar Foundation that over 8,000 individuals were victims of either enforced disappearances or extrajudicial killings by the police, since the only evidence backing up that claim were names and photos, and there was no way of ascertaining whether those were over 8,000 unique names and images. In a word, the data wasn’t solidly verifiable.

‘‘I didn’t agree with Kingara’s modus operandi for arriving at those very high figures,’’ Mohochi said. ‘‘That notwithstanding, I invited him to speak to Prof. Alston because in this struggle, all contributions are valid.’’

During Prof. Alston’s first closed-door meeting with the Kenyan civil society at Hotel Intercontinental, Oulu and Kingara arrived early to erect three Oscar Foundation drop-top banners. No one else had brought any publicity or similar material. When Prof. Alston walked into the room, he asked Mohochi what the banners were.

‘‘I called Oulu and asked him to kindly put the banners away,’’ Mohochi said. ‘‘At that moment, we noticed the presence of two suspicious characters in the room. When asked who they were by Muthoni Wanyeki of the Kenya Human Rights Commission, they couldn’t explain themselves properly. I told them I was the one who had sent out the invitations, meaning I hadn’t sent them any, and asked them to kindly leave.’’

In subsequent days, Oulu and Kingara had the opportunity to present their evidence on extrajudicial killings and enforced disappearances to Prof Alston. The next time Mohochi saw them was at the United Nations Office in Nairobi on the day Prof. Alston released his damning report, which labelled Attorney General Amos Wako as the embodiment of impunity and which demanded the resignation of Commissioner of Police Maj. Gen. Hussein Ali. In Prof. Alston’s eyes, it appeared, extrajudicial killings in Kenya needed urgent mitigation.

Even to Mohochi, who had played a leading role during Prof. Alston’s visit, the final report was shocking.

‘‘I hadn’t had a look at the report,’’ Mohochi said. ‘‘I was part of the crowd just like everyone else. If you consider Alston’s career as a rapporteur, he had never gone that far. That report was quite undiplomatic, partly because there had been attempts of state interference on his investigations in places like Bungoma.’’

A fortnight after the report came out, Oulu and Kingara were assassinated.

Did Alston’s report contribute to their deaths, or were there more complicated reasons behind their killing?

***

During the subsequent sitting of the United Nations Human Rights Council in May 2009 in Geneva, barely two months after the assassination of Oulu and Kingara, the Government of Kenya sent two high-powered delegations to Switzerland. One was led by the Minister of Interior, Prof. George Saitoti, while the second was led by the Minister of Lands, Senior Counsel James Orengo. There were certainly jitters in Nairobi.

Attending a discussion at which Prof. Alston, Mohochi and the Kenya National Commission on Human Rights (KNCHR)’s chairperson, Florence Simbiri-Jaoko, were panelists, Mutea Iringo, the Principal Secretary in the Ministry of Interior, asked to be provided with specifics on the threats faced by human rights defenders so that the government could intervene. It was farcical, given that not too long before, Oulu and Kingara had been killed in death squad style. Mohochi decided to play along, giving two death threats against him as an example.

‘‘I couldn’t risk giving details about anyone else’s death threats,’’ Mohochi said, ‘‘and so I volunteered my own two death threats, going as far as giving the Occurrence Book (OB) Number under which I reported them at Parklands Police Station. To date, neither Mr. Iringo nor Parklands Police have ever contacted me about the same.’’

***

It was under these tension-filled circumstances that organisations such as Mohochi’s IMLU, the Kenya Human Rights Commission (KHRC), the Release Political Prisoners (RPP) pressure group, among others, upped the ante in the protection of human rights defenders. They had already operationalised the National Coalition of Human Rights Defenders (NCHRD) back in 2007 – a clear sign that threats to activists didn’t start with the killing of Oulu and Kingara – which was hosted at different times by either IMLU, KHRC or RPP. It wasn’t until 2012 that NCHRD established a fully functional secretariat from where it solidified its programmes and countrywide protection networks, with Mohochi as founding chairman of its board of trustees.

‘‘We were already protecting human rights defenders starting from as early as 2001,’’ Mohochi told me, ‘‘not just as IMLU but as a broader coalition of actors. We were meeting at the Kenya Human Rights Commission, and had a budget for this. It’s not that we woke up in 2007. That’s only when we formalised the NCHRD to proactively put in place further mitigation measures for human rights defenders to do their work without fear of recrimination. Defenders were always alive to the sorts of risks their work attracted.’’

‘‘It was in the early 90s when we started having conversations about who defends the defenders,’’ Salome Nduta, a protection officer at NCHRD, told me at their near-clandestine Nairobi nerve center. ‘‘Before a functioning protection network was in place, activists had to be each other’s keepers, in the literal sense.’’

To date, the NCHRD has taken up hundreds of protection cases from across Kenya while doing what every responsive organisation in its shoes would ordinarily do – to continue disrupting itself and adopting fresh strategies as new threats emerge. From the word go, the difficult question has been – and not only for the NCHRD: How does one ascertain what comprehensive protection entails? With time, the scope of what it means to offer protection has kept expanding, as new, more complicated cases have landed at the NCHRD.

The broad strokes with which protection has been painted include offering legal, medical and psychosocial support, and in extreme cases, relocation. The practicalities of these range from bailing out activists during protests, to offering them advocates for those charged in courts of law, paying their medical bills and offering counselling, all meant to cushion human rights defenders, especially those in the frontlines at the grassroots.

‘‘Since our inception, protection has evolved,’’ Salome told me. ‘‘Now we have situations where an activist gets killed, and the idea of protection means you may now have to intervene and support their families for a time in whatever way possible, since a lot of times the deceased happens to be the sole breadwinner.’’

These sorts of interventions can be difficult, since organisations such as the NCHRD almost always have budgetary constraints. The idea that anyone can knock on their doors anytime and seek assistance has similarly created the impression that the organisation is swimming in wads of cash, something Salome tells me is far from the truth. Interestingly, the largest chunk of their budget goes into offering legal support.

‘‘I cannot quantify the amount of money we’ve spent on paying for bail and bond so far,’’ Salome says. ‘‘A lot of times our legal kitty runs dry sooner than expected. The arrest and harassment of activists doesn’t stop, while the ongoing cases take forever. This means ours is a continuous, long game of legal support.’’

According to Mohochi, the evolution of the concept of protection cannot happen without local context.

‘‘I have always maintained that we can’t blindly copy Westernised ideas of protection without factoring in our circumstances,’’ he says. ‘‘Something like temporary relocation. You can imagine how many people one might need to relocate, but then after they come back what next? I therefore believe in a proactive approach to protection, where we built a nationwide grassroots network of defenders who continuously assess their risk levels and act to mitigate threats before things escalate. We encourage them not to take suicidal risks.’’

Yet no matter how fool-proof protection programmes got, and despite the numerous cautionary measures human rights defenders employed at a personal level, there were no guarantees that more soldiers of justice wouldn’t lose their lives in the line of duty.

***

On 27 June 2016, Kenya woke up to a strongly trending social media hashtag #FindLawyerWilly. Willy Kimani, an advocate working for International Justice Mission (IJM), had gone missing four days earlier. Missing alongside Willie were his client, Josephat Mwenda – a bodaboda rider and victim of a supposed accidental shot in the arm by Senior Sergeant Fredrick Leliman – and Joseph Muiruri, their taxi driver. They had last been seen thirty odd kilometers from Nairobi, at the Mavoko Law Courts where Mwenda had sued Senior Sergeant Leliman.

‘‘There was a sense that IJM didn’t want to make a lot of noise publicly about the matter,’’ a lawyer who was involved in the early stages of the investigation, but who sought anonymity, told me. ‘‘They believed the police would speed up investigations, possibly because they had received assurances from senior state officials, or out of high-level interventions by the U.S. embassy, seeing that IJM is an American charity.’’

Yet no matter how fool-proof protection programmes got, and despite the numerous cautionary measures human rights defenders employed at a personal level, there were no guarantees that more soldiers of justice wouldn’t lose their lives in the line of duty.

Soon, the Law Society of Kenya, of which Willy was a member, the U.S. embassy in Nairobi, representing Willy’s employer, hundreds of taxi drivers and bodaboda riders standing in for Mwenda and Muiruri, were all up in arms, unrelenting in their demand for justice. The state quickly complied and moved to investigate.

Four days later, Willy’s, Mwenda’s and Muiruri’s dead bodies were discovered in Ol-Donyo Sabuk River. All were stuffed in the kind of gunny sacks usually used to package agricultural produce. The autopsy revealed that the trio had been clobbered on their heads by a blunt object before being strangled. The killers had hit Willy the hardest; his skull had the severest fracture. Mwenda appeared to have been physically tortured the most, as if someone sought a confession from him. Muiruri, the taxi driver, seemed to have been collateral damage, a case of being in the wrong place at the wrong time.

The game-changer in the Willy, Mwenda and Muiruri case arose from a most unlikely quarter. Peter Ngugi Kamau, a police informant whom preliminary investigations had placed inside the murder syndicate, unleashed a 21-page confession, detailing how the three men were abducted after leaving Mavoko Law Courts before being driven away in the vehicle of Senior Sergeant Leliman, the man accused of shooting Mwenda. Leliman was in charge of the Syokimau AP Camp, which is where he held the abductees in a cell. According to the confession, Willy, Mwenda and Muiruri were later driven to an open field where they were killed one after the other before their bodies were disposed. Other suspects in the murders were Sergeant Leonard Maina Mwangi, Corporal Stephen Chebulet and Constable Silvia Wanjiku Wanjohi. Their dramatic trial is still ongoing.

Questions have been asked as to why the police moved swiftly in the matter. Was it the Americans, or was it because the decision to kill was made by junior officers, or both? Does the level at which a decision to kill is made affect the nature and speed of investigations? For now, hope abounds that justice will be served.

‘‘My sense was that the police officers who committed the murders considered Willy a disposable small fish,’’ the lawyer told me, ‘‘thinking that they could kill him and his colleagues and that no one would raise a finger. They were mistaken. Lawyers and other human rights defenders saw the deaths as a wake-up call.’’

The next big hashtag campaign a couple of years later resulted in serious contestation. On 10 February 2019, #FindCarolineMwatha was the big fuss online. A founding member of the Dandora Social Justice Centre, Caroline Mwatha had disappeared four days earlier. Described by Wangui Kimari of the Mathare Social Justice Centre as one of the kindest and most likable individuals she had ever met, Mwatha and her colleagues had received a series of death threats for their work documenting extrajudicial killings in Dandora, considered one of Nairobi’s hotspots.

‘‘They shared with me the threats they had received,’’ Wangui told me, ‘‘after which I wrote emails to a number of organisations seeking support. Seeing that it was December 2018 and organisations were preparing to break for the holidays, there is a real possibility that some of those pleas went unheeded, or those concerned planned to act in the New Year. We evacuated a few individuals, with the majority retreating to their home villages.’’

A hardcore grassroots organiser, Mwatha was part of a ground-up human rights movement, where instead of waiting to write and release reports in air-conditioned offices, they operated at the very front lines, shielding disadvantaged communities from rampant police brutality. In her Dandora locale, Mwatha and her colleagues were investigating a number of extrajudicial killings, especially of young men killed in cold blood on the pretext of fighting crime. It was because of this work that trigger-happy policemen were slowing down.

‘‘It isn’t uncommon for well-known killer cops to issue public death threats to those working at social justice centres,’’ Wangui told me. ‘‘In Mathare, some of our colleagues can’t go to places such as Mlango Kubwa because the reigning killer cops in those areas have given them direct warnings. It isn’t child’s play.’’

After the hashtag trended for a few days, on February 11, activists met and decided to hold a protest the following day to put pressure on the state to either produce Mwatha, or give a progress report on their investigations, if any. The protest never materialised. That morning, news broke that Mwatha’s body was found at the City Mortuary. According to subsequent investigations, the police alleged that Mwatha had been brought to the facility after dying from bleeding at a clinic in Dandora, where she was procuring an abortion.

Through a series of media leaks, the police alleged that from their analysis of her phone records, Mwatha was having an extramarital affair which resulted in an unwanted pregnancy, hence the abortion. In what was alleged to be Mwatha’s last communication with the man believed to be her secret lover – once again leaked to the press – the messages revealed a woman in distress.

Was someone concocting a predetermined narrative with the calculated media leaks?

‘‘We have never believed the abortion theory,’’ one of Mwatha’s colleagues who has since withdrawn from human rights work told me. ‘‘She was a powerhouse in Dandora and silencing her has had a chilling effect on everyone here. We have been asking ourselves, if they could kill Caroline, then who can’t they kill?’’

The autopsy, which was witnessed by leading members of civil society, revealed that Mwatha bled to death courtesy of a raptured uterus. However, the looming question the pathologist left for investigators was: Did Mwatha procure the botched abortion voluntarily, or was it done to her against her will – for her to bleed to death and for the abortion narrative to be used as a cover-up for murder? In the world of activism, it is common for perpetrators to employ such seemingly picture-perfect techniques in eliminating a target. It has been hard to convince Mwatha’s colleagues of the abortion theory. To them, it remains an assassination.

For now, human rights defenders keep watching their backs, hoping they won’t become a hashtag. A few others whose names couldn’t trend fell through the fissures of social media, slipping away quietly.

A criminal human rights reporting project by Africa Uncensored (AU) and the Institute of War and Peace Reporting (IWPR)

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