Yesterday the Kenya Human Rights Commission launched an important and timely report, Lest We Forget: The Faces of Impunity in Kenya.The report is written against the backdrop of massive corruption and accompanying oppression, and the resulting culture of impunity that have characterised the system of politics and government since independence. Its aim is to bring to account the perpetrators of corruption, ethnic violence, land grabbing and other violations of the law, particularly human rights—a special concern of the KHRC. The ways in which these practices violate human rights of individuals and communities is obvious: poverty, exclusion, landlessness, ethnic fights threatening human security, impossibility of getting justice in the courts against the rich and the powerful, lack of a fair prosecution system, and the perversion of justice.
The KHRC has hit upon an interesting methodology to seek accountability and punishment for these violations, namely by mining existing, official reports. Despite widespread impunity, a considerable amount of evidence has been marshalled against the perpetrators by official processes, through commissions of enquiry or parliamentary committees, or other forms of investigation—these implicate the highest officials, including presidents. Based on the evidence, they should be prosecuted and their ill gotten gains recovered. That this evidence can be gathered reflects one of the several contradictions of the Kenya system.
The state is thoroughly criminalised. It serves to create wealth for a handful of politicians, bureaucrats and business people; and to shelter them from the reach of the law. It performs these functions by a systematic violation of the constitution and the law. Much of the edifice for this is built on illegality. But the inconsistency of these practices with constitutional values produces a fundamental contradiction. Deeply repressed, people are driven to put pressure on the government to deal with the more outrageous transgressions of rights. For the most part the government can ignore such pressure—but not always. When it cannot, it resorts to the typical device of delay, even obfuscation—an enquiry, firmly under the control of the government. The Reports examines several of these enquiries (on ethnic clashes, so clearly promoted by politicians (Akiwumi), land grabbing (Ndungu, prematurely terminated but not before the incrimination of the highest in the land), Goldenberg (Bosire), Grand Regency (Cockar), Artur Brothers (Parliament), two enquiries on the Ouko killing, the maize inquiry and more. Most were suppressed and are still “confidential” but have somehow found their way into the public domain.
Another contradiction then surfaces—the framework of transparency and public participation, more so in commissions of enquiry than parliamentary committees. The enquirers cannot entirely ignore the evidence, often given in public (though they can fudge a little, and expunge names of suspects like Jomo Kenyatta and Daniel Moi). The president can lock away reports of commissions under the inquiries legislation (but not legally now under the new constitution); this is a bit more difficult with parliamentary committees, but even there intimidation or money (frequently both) can ensure no key person is embarrassed. The most wonderful and terrifying example of this—showing the enormous corruption of state institution, in this case the judiciary—concerns the way in which the wealth of a senior minister was effectively laundered through a court, by curious legal principles enabling it to re-write the commission report, exonerating the minister.
Reading the KHRC Report one realises what an extensive and dense network of senior officials of every state institution operates to steal from the state and the private sector, how they mutually support and shield each other from prosecutions and other punishments (by the simple expedience of co-opting the prosecutor into their pursuits), and thus wield a firm hold over the state apparatus—no separation of powers here. The enquiries produce evidence of dishonesty, arbitrariness and thefts by presidents, ministers, ex-ministers, parliamentarians (more numerous than I had suspected), senior parliamentary staff, bureaucrats (lots of permanent secretaries), police (at the highest levels), commanders of the armed forces, district and provincial administrators, diplomats, senior officials of Central and commercial banks, and other parastatals, chief justices and other senior judges, intelligence services, mayors, town clerks and their subordinates, and the children of the above (especially presidents) and their business associates. Truly mind boggling. Among the people identified by various commissions are household names, such as J and U Kenyatta, D Moi, Saitoti, Biwott, Ntimama, I Ruto, W Ruto, Pattni, Wilson Boinett, Sally Kosgey, Henry Kosgey, Michuki, Muthaura, Hussein Ali, Mary Wambui, Balala, Okemo, Sunkuli, Kulei, Mohamed Yusuf Hajj and so on. If the allegations are justified (and remember the allegations are made after thorough inquiries, often by bodies appointed by the government), none of them would be qualified to hold public office under the Constitution’s rules on leadership and integrity. Yet they currently, despite internal differences, have a complete stranglehold over the state. In these circumstances political, economic and social reforms are impossible.
The KHRC calls for those against whom evidence has been found to be tried. Its recommendations for legal reform have resonances with the approach and substance of the new Constitution. And yet, one year later, it is clear that we have made no real progress in the fight against corruption and impunity. Land grabbing has increased with a vengeance, and the Ministry of Lands is able to say without embarrassment that it can do nothing about the massive corruption within the ministry that facilitates the grabbing, the falsification of titles, the forgery of deeds—and the huge sums of money that are exchanged every day to lubricate the machine that we call the Ministry of Lands.
The situation in other sectors is scarcely better. The police continue to extort bribes, turn a blind eye to corruption, abduct people in broad daylight, prefer to kill rather than arrest suspects, in front of terrified spectators, secure in the knowledge that they are untouchable. Drug barons walk (or more accurately, drive in huge limousines), hobnobbing with leaders of the government s and the corporate world. The government sends innocent Kenyans abroad to be tortured without accountability to the public or the courts. The tendering process is ignored or violated daily. All these and many other violations of the constitution and the law have become central to the way the state functions.
The implementation of the Constitution is in the hands of those deeply opposed to its values and procedure—and they (many of whom are listed in the enquiries) have ensured through appointing their protégées to commissions and public services that the new constitution will be rendered toothless. On the first anniversary of the constitution, it is time to turn to its real guardians, the people, victims of the harsh edge of the criminalised state, for the direction and impetus for reform.
The writer is a director with the Katiba Institute.
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