We have independence but are not free from colonial practice
By Maina Kiai
| December 15th 2019
In 1994, while at the Kenya Human Rights Commission, I authored the report “Independence without Freedom: The Legitimisation of Repressive Laws and Practices in Kenya.” The report argued that the 1963 independence was cosmetic and merely marked the use of a new flag while maintaining virtually the same ecosystem used by, and sustained, colonial rule. December 12 simply highlighted the replacement of white colonial masters with black ones. The freedom that millions had fought for, been jailed for, and suffered for was but an illusion.
I reflect on this report every year on December 12, analysing whether things are that much different 25 years hence. Certainly, many of the repressive laws from the colonial era have been repealed or replaced, especially since the new Constitution came into force in 2010.
But, sadly, the practices do not seem to have improved as much as the laws, and the same repressive apparatus obtains across the country. The major difference today is that courts are more willing to challenge these practices, and importantly, the people themselves refuse to be returned into the old colonial box that the rulers of Kenya wish us to be in.
The most glaring examples of continued colonial habits are from the Executive, which refuses to acknowledge that Kenya has changed. Just recently, the Official Spokesman announced the “banning” of all protests in Mombasa despite court rulings affirming the constitutional freedom of assembly. We do not have to like or agree with the content of assemblies, but they are sacrosanct and a right that is not given to us by the state like a favour. It is only in colonial situations—with subjects rather than citizens--or authoritarian conditions, that rights are ostensibly turned into gifts or privileges.
The refusal to abolish the colonial provincial administration despite the Constitution remains an insult to any sense of freedom: It is simply a tool of control and repression.
The continued and heightened police habits of killings, extortion and harassment are another illustration of colonial practices. Who among us normal Kenyans has not been subjected to attempted or real extortion by the police? The number of Kenyans who know someone who has been shot dead by police over the years is uncountable.
The colonial practice of making orders from the top without considering the impact of the orders continues, even if the orders have serious negative consequences. Take the orders loading all imports on the SGR which has meant the death of Mombasa as a viable economic area. Only colonial states think that it is okay to impoverish one region, and benefit another more prosperous one, as moving the port from Mombasa to Nairobi has done. This is exactly what the colonial regime would do in moving services, industries and facilities first to their white areas, before thinking of African zones!
Another characteristic of colonial rule was that laws and rules applied to some but not the wazungus in power. This continues, with the those close to power allowed to carry on with corruption while those who have fallen out are targeted. Just look at the list of those who have gotten away with open corruption and witness their proximity to power. From NYS 1 scandal, to Afya House scandals, to the Eurobond scandal where Sh100 billion disappeared without a trace to the ballooning of the loan for an SGR that is half the distance as expected.
I laughed out loud reading the news report of the proposed law to bar lawyers from private practice if they are in public service. In ordinary circumstances that idea would merit a serious discussion, but in the context of a Kenya where the leaders are private businessmen themselves, it is a joke.
Heck, we do not even need to pass laws to begin to end conflict of interest! It takes just personal decisions from Messrs Kenyatta and Ruto and half these issues are sorted out, by simply getting rid of their business interests in NCBA Bank, Amco Insurance, Heritage Hotels, Weston Hotels, Brookside Dairy, Timsales, and others for example.
Thereafter, these companies should be forbidden from doing any business with government or parastatals. But as long as we know that the push to nationalise Kenya Airways or give Kenya Airports Authority to Kenya Airways is linked to debts to banks including NCBA, then any discussion on conflict of interest is moot. As long as government offices are serving gazillions of cups of tea with Brookside milk, then no law on conflict of interest makes sense. As long as Weston Hotel is offered as one of the hotels for participants at international meetings in Nairobi, we have a problem. As long as many parastatals are insuring through Amco Insurance Company we are not going to make progress.
And as long the state, through the Central Bank and State House, promote the Stawi loan scheme—backed by some banks including NCBA--that is also linked to Huduma Namba, then we are in trouble.
And this is all very colonial incidentally. For colonialism was a tool to exploit ordinary people for a few, meaning we have independence but are not free.
- The writer is former KNCHR chair. [email protected]
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