When the parties to Kenya’s Grand Coalition government gathered in Geneva, Switzerland for “The Kenya National Dialogue and Reconciliation: One Year On,” the signs were not, at first, auspicious.

It was preceded by anxiety and bickering about whether or not ODM would try to use the meeting to renegotiate the mediation agreement — and petulant power plays by PNU to prevent the same — resulting in the eventual no-show of both the principals.

But, as everybody else signalled their willingness to engage with the meeting in a constructively critical manner, the meeting eventually progressed — vigorously but without open acrimony.
Convened by the Kofi Annan Foundation and the Centre for Humanitarian Dialogue, with the support of the government of Norway, the meeting was intended both to take stock of implementation of the mediation agreements as well as to extract what lessons can be learnt from the mediation process — not only for Kenya but for comparable crises around the world.

That being the case, the meeting was attended not only by the parties — senior representatives of both the Orange Democratic Movement and the Party of National Unity — but by all who had engaged, in one way or another, with the mediation process.

They included civil society, the private sector including the media, the local diplomatic community and representatives from their capitals as well as representatives from the multilateral agencies that had supported the mediation process.

Organised in three plenaries, the meeting covered the mediation process itself, as well as implementation of all four Agenda items.

While the three plenaries were conducted under Chatham House rules to enable frank debate, the opening and closing sessions were open to media coverage. What follows now is thus an attempt to summarise, without attribution, the analysis that emerged.

The now disbanded Electoral Commission of Kenya lacked competence. Public confidence in the ECK had also been eroded by the manner in which the last appointments to it had been made, without consultation among the ruling political party and the opposition.

The mediation agreement that established the Independent Review Commission of Kenya (IREC) chose to focus its findings and recommendations on how to re-invest the electoral process in Kenya with both competence and confidence.

To focus on electoral reform broadly rather than to go into the nitty-gritty of what precise errors or fraud had occurred and who was responsible for the same.

The question is whether, in the long term, this will prove to have been the wise thing to do. Certainly, emotions are still strong over the presidential results.

There would have been real risks had the IREC chosen to declare one way or another — which it claims it could not have done given that all materials available had not been secured in a reliable manner. And certainly, in the long term, electoral reforms are required.

But without accountability in an individual legal sense to ensure future deterrence, can electoral reforms alone ensure a non-repetition? Has the process of appointments to the interim ECK met the standards required for both competence and confidence?

Will the process of reviewing our constituency boundaries meet similar standards?

Can the gerrymandering of the past be addressed in a manner that both restores the principle of one person, one vote and recognises regional disparities in terms of representation?

Or will the Constitutional reform process have to finally resolve the question of our electoral system itself — transforming it from a winner-take-all system to some combination of direct and proportional representation?

Most fundamentally, however, is the cost of not restoring competence and confidence in our electoral system.

Although Kenya had experienced elections-related violence before 2007/8 — in 1991/2 and 1996/7 — such violence had, in the main, occurred before the general elections.

It had also clearly been politically instigated in order to displace individuals and communities assumed to be in favour of the opposition from regions in which the then ruling political party wished to secure political support.

Of interest is why elections-related violence failed to occur in 2001/2 — at the moment when the then ruling political party could have been assumed to be most interested in stopping political transition.

The role played by senior civil servants and all heads of security services at the time in ensuring neutrality of the public service including the Provincial Administration and all security services — and so enabling a peaceful electoral process — must be explored further in this respect.

What is clear is that, once it had begun, the election violence of 2007/8 was beyond the control of the security services.

The state engaged in violence itself — a fact attested to by the report of the Commission of Inquiry into the Post Elections Violence (CIPEV), which attributed no less than a third of all deaths to the security services.

Until the security services are able to act effectively within the boundaries of our Constitution and the law, the security situation will remain tenuous, with political parties and the citizens who support them resorting to private solutions for public problems.

Both parties to the conflict still demonstrate a lack of belief in the neutrality of the security services.

On the one hand, the organised violence in the North Rift is justified as legitimate public protest.

On the other, the equally organised counter-violence that moved out from Central and Nairobi into the South Rift is justified as legitimate self-defence.

Then there is the question of how best to achieve justice for the organised violence and the equally organised counter-violence.

The failure of parliament to pass Bills that would have established a constitutionally entrenched Special Tribunal to try perpetrators on both sides should, perhaps, have been anticipated.

Parliament, like the executive, clearly now wishes to assert itself as the arbiter of Kenya’s destiny — witness the mutterings about the continued role of the mediator and the mediation process itself as well as about national sovereignty.

The reality is that politicians on both sides of the Grand Coalition and those in the national private sector that support and benefit from them, were implicated in the post-election violence.

The new alliances forming across the parties to the coalition must be seen in that light — they are not just in the interests of succession but also in the interests of impunity. So, how to ensure that the Bills, if re-introduced, will go through this time round?

The legitimate concerns of those individual parliamentarians sceptical about the prospects for justice through a Special Tribunal will need to be taken into account in any redrafting of the Bills before re-introduction.

In fact, much technical input had been put forward to insulate a Special Tribunal from interference and manipulation but was not taken on board. It now should be.

To cut the political ground from under the feet of individual parliamentarians seeking to evade justice, we must fast-track criminal justice proceedings for lower-level perpetrators.

The Attorney General has, for example, already publicly indicated that beyond the two most visible cases — those relating to the extrajudicial executions in Kisumu and the burning of the Kiamba church in Eldoret — another 154 cases are ready for prosecution.

As the CIPEV report pointed out, impunity for the electoral violence in the 1990s led us directly to this point. Continued impunity cannot be allowed — given the scale and speed of the post-election violence in 2007/8, we will not survive another round.

Many aspects of the response to Kenya’s crisis were unique.

On the humanitarian front, Kenyans contributed to the relief effort ourselves.

And the Kenya Red Cross, without the capacity to do so itself, took leadership of the relief effort, with all multilateral agencies and their sub-contractors falling in quietly behind it in support.

The African Union took leadership in a manner that was similarly unprecedented, again with other multilateral agencies falling in quietly behind it in support.

From the visit of the then AU chair to the visits of the Forum of Former African Heads of State and Government to the quality of the AU’s Panel of African Eminent Persons eventually charged with the mediation, the AU signalled its concern right from the start.

Kenya’s civil society also helped generate the demand for peace, truth and justice.

And Kenya’s private sector, including the media, also early on shifted from an initial concern about the continued movement and production of goods and services to a broader concern about the survival of the country through a negotiated settlement.

The result was a ceasefire agreement that also broadly spelt out the more long-term issues that needed to be dealt with.

The Constitution. Equality. Land. Transitional justice. Youth.

As summarised by Kofi Annan at his public closing of the meeting, the Kenya National Dialogue and Reconciliation was a positive response to our national crisis — but the space to make it a cure rather than a band-aid is shrinking.

The coalition is not widely viewed as implementing the mediation agreements or prioritising public needs.

But it is not too late for statesmanship. Confidence must be restored in all public institutions.

Accountability rather than impunity will enable movement forward. Multi-stakeholder dialogue is the way to go. The regional and international community remain available to contribute — but the primary responsibility rest with Kenyans.

Kenya provided a model for the rest of Africa in 2002. We provided a different kind of model in 2007 — that Ghana averted conflagration during its own elections is attributed, in part, to the awareness of our own conflagration.

In conclusion, in 2002, Kenya lost the opportunity to move on both the economic and the political agenda.

The focus on the economic at the expense of the political brought us inexorably to the brink in 2007/8.

Now, given the imperatives posed daily by the economic consequences of the crisis — coupled with the impacts of the global financial crisis — we must resist the temptation to do the same thing expecting different results.

L. Muthoni Wanyeki, executive director of the Kenya Human Rights Commission, participated in the Geneva meeting. The article above, while attempting to broadly distil discussions at the meeting, is nevertheless her own personal reading.