It’s clear, an immoral deal is on the table

Monday December 7 2009



We can expect at least a week of calm, courteous and reasonable behaviour on the political front. Phew!

Because two members of the African Union’s mediators for the Kenya National Dialogue and Reconciliation will be in town.

Kofi Annan, former Secretary General of the United Nations, and Graca Machel, member of the Panel of Eminent Personalities overseeing the African Peer Review mechanism, will once more be taking stock of the implementation of the mediation process agreements.

On the surface of things, going by form alone, the state is not doing too badly.

The resettlement process proceeds, with the government now admitting to the initial problems of conceptualisation and difficulties of implementation.

The Grand Coalition is holding, with the two Principals more amicable with one another and tensions seem to have shifted to internal power struggles.

Two inquiries have been done — into the elections and the violence — with follow-up mechanisms now in place.

And, on long-term issues, the Committee of Experts has produced the Harmonised Draft Constitution, which is now the subject of public debate.

The Truth, Justice and Reconciliation Commission, has also just started its work.

The Land Policy has been passed by Cabinet and awaits adoption by parliament as a sessional paper.

And two task forces’ reports addressing institutional reforms in two critical components of the criminal justice system —the Kenya police and the judiciary—are now also ready.

But the devil is always in the detail… and substance is always more important than form.

On the fundamental restructuring of how power is captured and utilised in Kenya, we would be foolish not to see the writing on the wall. Behind the exhortations to polite debate, a vicious battle is brewing on the structure of the executive, devolution and even the electoral system.

If the Constitution gets to a referendum and then through it — amendments notwithstanding — we can count ourselves lucky.

An equally cynical and vicious alignment of those with interests in ensuring no individual reckoning for last year’s violence is also underway.

Communities most affected by (and involved in) the violence have closed ranks — making the prospects of witnesses coming forward if and when the International Criminal Court moves to Kenya slimmer by the day.

In effect, an immoral deal is on the table — silence for peace — and security of both human-rights defenders and potential witnesses.

Added to that is the question of institutional resistance to accountability.

The head of the Kenya Police Force may have changed. But Kenyans know that changes of individual personnel ultimately mean nothing in terms of effecting the collective individual change that translates into actual changes of institutional culture.

Assessing implementation of the mediation agreements has to be about more than checking off little boxes on laws, policies, reports.

Is Kenya a less fragile, safer place to be than it was at the end of February last year? Has it truly recommitted to democracy, human rights and rule of law?

If we’re honest, not yet. If we’re equally honest, these facts are frightening.

L. Muthoni Wanyeki is executive director of the Kenya Human Rights Commission