Its about corruption, laced with ethnicity

By Yash Ghai

Certain ministers are particularly sensitive to allegations that Kenya has become a failed state.

How can that be, they say, if we have a democratic constitution, an efficient administration that ensures people’s rights and security, independent courts that do justice impartially, a vigorous legislature that holds the Executive accountable?

Indeed, despite the understandable clamour for reform, the present constitution is not without merit. It provides for the separation of powers; it vests the Judiciary with enough authority and independence to fight off interference by the Government or tycoons; elections are held regularly, administered by a commission which has the necessary attributes of independence.

Kenya has a well-armed police, and armed forces with a sufficient supply of expensively acquired weapons. In recent days we have seen the vigour of our democracy: Has the National Assembly not chastened the President over the Ringera affair? What further evidence, they might ask, do the critics require of the robustness of the State?

Alas, all is not as it appears. Perhaps the most telling of all the remarks made in the last week is that of the Minister of Justice and Constitutional Affairs Mutula Kilonzo.

Presidential authority

He asks of Kenyans who want fair play: "Why do you want to reduce presidential authority to the level of paper?" Pray, what paper? Could he, by any chance, be thinking of the Constitution? The minister’s attitude is certainly at the root of our present predicament. Millions of Kenyans want to reduce the powers of the President, as of lesser officials, to the level of that paper which we call the Constitution and which proclaims itself supreme law.

Our problem is that our ministers and officials routinely flout, with impunity, the values and dictates of the Constitution.

The Attorney General and other law enforcement agencies, just as routinely, turn a blind eye to violations of the Constitution — just as they have since independence. We certainly have a constitution but most assuredly we do not have constitutionalism; our pragmatic justice minister is quite right to dismiss it as a piece of paper.

Whether the firm action of the National Assembly in undoing Ringera’s "appointment" marks a turning point, as many would wish, is too early to say. My own answer tends towards pessimism. In our euphoria over the Ringera affair, we must not forget that the previous day the National Assembly had done its best to nullify efforts to reverse the damage to Mau water tower — a decision, which in the long run is more destructive of Kenya than Ringera could be in a life-time.

Kenya has many symptoms of a failed state, which Kenyans well recognise. It has abysmally failed to ensure the rights or security of the people.

The police, and some senior politicians, collaborate with illegal militias. Prof Phillip Alston, relying on a vast amount of credible evidence, concludes that the police and army are responsible for a large number of killings.

Meanwhile, the police are unable to protect Kenyans from the atrocities of these and other gangs.

Land is up for grabs by the well placed, putting at risk lawful titles. The quality of justice continues to be polluted, and the courts remain a venue for whitewashing the administration’s friends.

The State seems to operate only through a systematic violation of laws, and the accompanying impunities.

The country desperately needs the rule of law, which has long eluded us. We need it because it substitutes for common values, norms and trust that other states have been able to nurture through society.

The law ensures a degree of predictability of actions and their consequences and a measure of fairness. Through the rule of law we can build trust in one another, and in the institutions of the State. We will no longer be hostages to the caprice of ministers and bureaucrats. The law can even provide a basis of social solidarity, grievously lacking at present.

But will it be allowed to? To answer this question we need to understand the dynamics of politics and society — which, in our present state of economy and tribalism, brings us back to the political class.

Our political class is bound together through the perverse dynamics of our political system — they are unlikely to be fragmented by the Ringera affair, and have learnt to straddle the separation of powers with ease.

Max Weber’s classification of politicians into those who live "for politics" and those who live "off politics" provides a good clue to local politics. Those who live for politics are motivated by public service and the desire to change society for the better.

The other kind feeds off politics, which is not only a means to livelihood but the road to power and riches.

Money politics

In a third world country like Kenya, where politics are about money, the State provides easy access to wealth, through the plunder of resources channelled through it.

Political parties are not concerned about policies or social values; in this respect they are indistinguishable from one another.

Changing parties or shifting alliances are determined purely by considerations of personal advantage.

Their rhetoric moves with the winds of convenience, one day a firm supporter of the rule of law, the next day finding every imagined loophole through the law. The public space has been denuded of moral values. This erosion of values and sense of social responsibility is infectious and eats into all sectors of life.

Instead of policies, the last refuge of the rascal who lives "off politics" in Kenya is tribalism. Here is a ready bank of votes to be marshalled if one plays on the emotions of ethnicity.

This is achieved by pointing to the tribe that other tribes have exploited it and that their future is in peril. The politician presents himself, to fellow tribes people and outsiders, as the saviour. In this way the general interests of people as citizens are subordinated to those of the tribe. Tribe is set against tribe.

The nation is lost sight of. As Kenya’s example shows, tribal politicians are devoid of empathy with other communities, indeed their own tribe, for in the pursuit of their goals, they are prepared to betray or sacrifice their own tribes.

And they are quick to trade off with their political rivals; how else could the leaders of two tribes most implicated in post-election violence against the other conspire to defeat the Mau rescue plan? But tribal politics cannot be sustained by hatred alone.

They need to be lubricated by various forms of patronage, and money is central to that, as in the allocation of offices of the State, contracts, and other forms of State largess.

To sustain this form of bribery, politicians have to indulge in corruption in a massive scale. Perhaps the most obvious feature of Kenya politics, corruption, hides the centrality of ethnic politics. The two go hand in hand.

We seem so hooked on this trajectory that it is hard to see how politicians can let go of the tiger’s tail.

Perhaps the momentous contest of last week, reminiscent of the great battles for freedom and democracy in the history of established democracies, between the royal court and parliament, or the executive and the legislators, may well herald a new dawn.

We need to applaud our reform-minded legislators, for without them or a new political movement, we are doomed. So against all our pessimism, let us hope.

—Prof Ghai is former Constitution of Kenya Review Commission Chairman.