"The Kenya we want"

President Mwai Kibaki of Kenya faced a moment of public embarrassment on 12 December 2009 when he was unable to complete his independence-day speech because of heckling from the crowd. But this was far from an opposition-organised ruckus. Some weeks earlier, his political competitor (and the prime minister) Raila Odinga could hardly speak to a gathering of his supporters who countered his slogan of chungwa! ("orange", denoting his party) with shouts of unga! (maize-flour, i.e. "we are hungry") .

Kenya, right now - thirteen months after the post-election bloodletting of January 2008 - is in a state of quiet fury. Unlike a year ago, it is not being expressed with machetes and guns. The tribal and partisan aspects of the anger have shrunk; for the first time it is national in character. It comes from the very depths of civil society, and it is using all the resources of the law.

The title of a letter to the editor in the Nation (published on 16 November 2008) captured it perfectly: "We must take our country back from the politicians". All politicians.

What has happened in Kenya?

Also in openDemocracy on Kenya's crisis after the December 2007 elections:

Peter Kimani, "A past of power more than tribe in Kenya's turmoil" (2 January 2008)

Michael Holman, "Kenya: chaos and responsibility" (3 January 2008)

Gérard Prunier, "Kenya: roots of crisis" (7 January 2008)

Roger Southall, "South African lessons for Kenya" (8 January 2008)

Wanyama Masinde, "Kenya's trauma, and how to end it" (9 January 2008)

John Lonsdale, "Ethnicity, tribe, and state in Kenya" (17 January 2008)

Angelique Haugerud, "Kenya: spaces of hope" (23 January 2008)

Anna Husarska, "Kenya's displaced people: a photo-essay" (5 February 2008)

A legal timebomb

The violence which followed the 27 December 2007 election saw (according to official) figures 1,133 people killed, over 300,000 displaced, and tens of thousands of houses burned down (the true figure of the dead was probably closer to 1,500). By 28 February 2008, amid continuing disagreement over who had won the elections, President Kibaki's Party of National Unity (PNU) agreed to a power-sharing deal with its main rival, Raila Odinga's Orange Democratic Movement (ODM).

The deal was sponsored by Kofi Annan, the former United Nations secretary-general who was now acting as an envoy of the African Union. It included the creation of a new position of prime minister, to be filled by Odinga. This made it look like a return to the bad old days of ruling-elite political fixes which ended with a bloated pork-barrel cabinet designed to have as many mouths as possible at the trough.

But there was a small afterthought, if one largely overlooked at the time: the creation (at Kofi Annan's insistence) of a commission of inquiry on the "events" , to be chaired by Judge Philip Waki. Since Kenya is notorious for commissions of inquiry that lead nowhere, this should have been the first step towards the usual cover-up. But not this time. Judge Waki - having worked with a former police commissioner in New Zealand, Gavin McFadyen; a human-rights expert from the DR Congo, Pascal Kambale; and the Kenyan lawyers David Majanja and George Keboro - delivered his 529-page report to President Kibaki on 15 October 2008.

It caused a major surprise. Both the ODM and the PNU had expected that the "other" side would be blamed for the post-electoral violence - and the two parties were right. For the Waki report - to the great surprise (and satisfaction) of the majority of Kenyans - did indeed condemn them both.

Among the trenchant conclusions of the Commission of Inquiry into Post-election Violence were these:

* Most of the killing was not spontaneous, but the result of systematic violence by politically-organised tribal militias: Kalenjin killing Kikuyu settlers (PNU voters) in the Rift valley, and Kikuyu carrying out revenge killings in the Nairobi slums (the latter mostly targeting Luos - Odinga is Luo and the ODM was seen as a Luo political machine)

* The National Security Intelligence Service (NSIS) had given advance warnings of likely trouble, which the government had disregarded

* The police responded to violence through disproportionate means and also perpetrated killings along tribal lines

* The organisers of this mayhem were politicians from both sides; their names were not made public but were given by Judge Waki both to President Kibaki and to Kofi Annan

This was what most sensible people had known all along. But now it was out in the open, in the form of a legally-binding document of relentless urgency (see Xan Rice, "Philip Waki's ticking bombshell", Inside Story, 25 November 2008). Under the commission's terms of reference, the Kenyan authorities either had to set up a special court within sixty days to try the offenders or else see Kofi Annan give the names and the report to the International Criminal Court (ICC) in The Hague, which would then start proceedings against the accused parties for crimes against humanity (see Wanyama Masinde, "Kenya's trauma, and how to end it", 9 January 2008).

The explosion was all the louder because the Waki report appeared a few days after the publication of another report by Judge Johann Kriegler which had charged the Electoral Commission of Kenya (ECK) with:

* omitting 30% of eligible voters, but keeping on the electoral list 1.2 million dead people

* failing to prevent vote-buying, ballot box-stuffing and voter intimidation

* making massive mistakes in vote-counting, at the expense of both sides

* not being able to say who in the end had won the election.

The chairman of the Law Society of Kenya (LSK), Okong'o Omogeni, wrote on 16 November: "Our true character as a nation will be seen in how we handle the Waki Report".

The first reactions were - to the surprise of many in Kenya - remarkably mature. The PNU and the ODM alike shrieked that the report was "superficial" and "bogus" , but the political divide was not partisan; many politicians in these parties supported or criticised the report regardless of party affiliation. The PNU justice minister Martha Karua praised the report which many in her party condemned, while the ODM agriculture minister William Ruto rejected the document his leader Raila Odinga supported.

A kind of healthy panic set in, blurring both party lines and tribal affiliations. Odinga declared: "Rift Valley leaders should desist from receding into their ethnic cocoons on matters of national concerns...The time has come for Kenyans to face negative ethnicity". He was alluding to the fact that Ruto, a Kipsigi / Kalenjin had supported violations of legality in favouring Kalenjin settlement in the Mua forest, thereby creating an ecological disaster. Ruto's probable involvement in the creation of militias at the time of the election was very likely linked to securing the ethnic environment in the area for his fellow Kipsigi (see "Kenya: roots of crisis, 7 January 2008).

Ruto was Odinga's main ally in ODM, and for the leader to berate him was a dangerous gamble for the opposition leader. But Odinga had (probably correctly) gauged the feeling of public exasperation with the politicians, particularly MPs - many of whom (of both parties) rejected the Waki report. In the ODM, for example, the parliamentary group refused to accept the report and the national executive committee of the party had to override them. This at a time when the overpaid MPs ($11,000 per month, plus a variety of perks) were ferociously fighting to refuse the taxation of their incomes.

The public retched. A letter to the editor in the Nation said: "I am wondering how the people who killed our children, wives, husbands, brothers and sisters have the audacity to continue ruling us - and even refuse to pay tax." A huge political gap had opened between the professional political class, particularly parliamentarians, and civil society.

Gérard Prunier is research professor at the University of Paris. He is the author of The Rwanda Crisis: History of a Genocide (C Hurst, 1998), Darfur: The Ambiguous Genocide (C Hurst, revised edition, 2007), and From Genocide to Continental War: The ‘Congolese' Conflict and the Crisis of Contemporary Africa (C Hurst, 2006)

Also by Gérard Prunier in openDemocracy:

"Darfur's Sudan problem" (15 September 2006)

"The DR Congo's political opportunity" (14 March 2007)

"Chad, the CAR and Darfur: dynamics of conflict" (18 April 2007)

"Chad's tragedy" (7 September 2007)

"Sudan between war and peace" (1 November 2007)

"Khartoum's calculated fever" (5 December 2007)

"Kenya: roots of crisis" (7 January 2008)

"Chad: between Sudan's blitzkrieg and Darfur's war" (19 February 2008)

"Kenya: histories of hidden war" (29 February 2008)

"Sudan in a fix" (26 June 2008)"Sudan's Omar al-Bashir: a useful war criminal" (15 October 2008)

"The eastern DR Congo: dynamics of conflict" (17 November 2008)

A hope from scandal

In the wake of this feeling of revulsion at the men who had tried to protect their cushy jobs by cold-bloodedly inciting ethnic militias to murderous violence, came a slew of scandals - ranging from simply irritating to potentially catastrophic:

* The many commissions of inquiry set up by the Mwai Kibaki administration over the last five years were revealed to have been mostly useless - and the more expensive, the less efficient. The Goldenberg commission of inquiry into the huge financial scam of the 1990s had cost $7.1m to produce no result; while the Waki commission, with its enormous potential for reform, had cost a mere $70,000

* The security situation at the border with Somalia in Mandera kept deteriorating and the army seemed unable to contain it, despite increased military expenditure

* There were revelations about the random-killings committed by the army in reducing the Sabaot Land Defence Force (SLDF, an ethnic guerrilla group which had joined in the post-electoral mayhem for reasons of its own) during 2007-08. The LSK declared : "A law should be urgently established to guide military involvement in civil-society conflicts"

* In January 2009, George Okungu - the managing director of the Kenya Pipeline Company (KPC) - was sacked after 126.4 million liters of fuel (worth $98.7m at current market prices) had "disappeared" from KPC storage, siphoned off by the Triton Corporation petrol-distribution company. The Triton managing director fled to India in December 2008 after borrowing a total of $1.36 bn from the Kenya Commercial Bank

* The acting roads minister, Chris Obure, went public about his ministry's need for $1bn to build 64,000 km of roads; the ministry budgets had evaporated while all construction opportunities had been missed. "As a nation we spent a lot of resources in resolving the southern Sudan conflict, but now we can't even benefit from peace because we lack direct road access". With the present economic crunch, this had become a matter of national urgency, he said

* The food situation in Kenya has deteriorated, largely because most of the displaced persons who were forced to flee in January 2008 had been peasants working in the highly productive areas of the Rift valley and Nyanza provinces. A year after the violence, 150,000 were still displaced and agricultural production had declined by 4.7% - enough to upset the country's precarious food balance, especially for the poor.

Overall food prices increased by 35% during 2008; that of the staple diet, ugali (maize-flour), rose by 150%. Even worse was the chain of corruption when the government distributed 400,000 bags of maize bought with tax money to four millers; they in turn charged $1m to the National Produce and Cereal Board (NCPB) to grind it, while keeping the byproduct of milling and selling it as animal feed for their own benefit; distributors who bought the flour in 2 kg bags for Shs 1,750 ($25) resold it for Shs 2,650 ($38) a bag.

To top it all, the government asked the international community for $438m in emergency food-aid on 12 January 2009 - while declaring that at least 10 million Kenyans were at risk.

The press seethed with indignation as it reported these developments. The outrage over the maize scandal was reflected in the decision on 26 January to dissolve the NCPB. But the government has also responded by pushing through parliament a new press law which bypassed the independent media council and created a new "communications commission"; this was staffed with persons handpicked by the ministry of information, who were granted the right to control the contents of articles and to close radio and TV stations "in the case of an emergency".

Kenyan MPs, already furious at the press for denouncing their refusal to pay tax, were only too happy to give the repressive press law bipartisan approval. The Nobel laureate Wangari Maathai denounced the new law as a violation of freedom of speech, while journalists who demonstrated against it were beaten up. It is in this loaded atmosphere that the government announced the establishment of the special tribunal for Kenya to deal with the Waki report.

A new battle-line

The draft law for the new tribunal (which has yet to be finalised), prepared by a justice ministry now in the hands of Martha Karua, is drastic:

* There are to be two chambers - a trial chamber presided over by a Kenyan chairman and with two foreign judges (from a list suggested by Kofi Annan); and a similarly composed appeal chamber

* The public prosecutor will be a foreign judge, with a Kenyan deputy

* There is to be a right of compensation for the victims of the violence

* To avoid legal wrangling, the tribunal is to be supreme, i.e. legally placed above any other Kenyan jurisdiction .

Even more important, the tribunal's mandate is to be extended to examine all cases of politically-related civil violence since 1992. This clearly indicates that the phenomenon of "spontaneous" ethnic violence is being considered in its entirety over the last four elections, thus setting a clear challenge to the culture of political manipulation and impunity which had dominated Kenya over the years (see "Kenya: histories of hidden war", 29 February 2008)

It is significant that feeble attempts to criticise the recourse to foreign judges in the name of "national sovereignty" fell completely flat. There has, similarly, been no attempt to denounce the possible ICC recourse as a "foreign intrusion". The tribunal has to be operational by 1 March 2009 - or Kofi Annan will transmit the whole file to the International Criminal Court.

The government, looking for allies in response, decided to recall parliament from its recess - though it has so far failed to pass the legislation required to establish the tribunal. The European Union's Kenya representative announced that the disbursement of $500m of European aid would be contingent upon a serious implementation of the Waki report's conclusions. The Truth, Justice and Reconciliation Commission (TJRC) - set up in October 2008, and invested with great hopes as well as subject to withering critique - has been given an even broader mandate than the tribunal; it has the right to analyse and discuss all events of violence and human-rights abuses between October 1963 (the moment of independence) and February 2008 (see John Lonsdale, "Ethnicity, tribe, and state in Kenya", 17 January 2008).

At the same time, pressure has started to build to avoid the possibility of a cover-up. Civil-society organisations have organised a large meeting under the banner of "The Kenya We Want", to be held on 2-4 February 2009; they invited an impressive slate of world-renowned international speakers on human rights and civil liberties (see Angelique Haugerud, "Kenya: spaces of hope", 23 January 2008).

An end to violence

Kenya is now ready to bare its soul. What will the results be? Many doomsayers predict a repeat of the abuses of January 2008, while civil-society advocates insist that to bury the signs of corruption and violent political manipulation would likely trigger another very dangerous social crisis. There are serious fears that the coalition cabinet formed on 13 April 2008 (which implemented the power-sharing deal of 28 February) might not survive the process - and nobody knows what kind of new political dispensation would emerge in that event.

The civil-liberties climate has received a powerful boost since the election as United States president of Barack Obama, for whom the Kenyans feel a special affinity - all the more so since the government clumsily tried to prevent the Obama family from talking to the media. On 11 December 2009, the under-secretary in the ministry of heritage, Osman Said, tried to justify the communication ban by saying: "We are doing this because we want to ensure a better flow of information". This is exactly the kind of cant which the Kenyan public is sickened by.

Kenyans now stand at a crossroads. It is to be regretted that their remarkable exercise in self-examination and legal redress has received only a tiny fraction of the attention the January 2008 violence received. In its own way Kenya too is trying to say: "yes, we can!"