GENERAL ALI AND THE 'NEVER AGAIN' FACTOR .

Saturday, 08 October 2011 00:02 BY JOE ADAMA . Ali with lawyer Evans Monari: Police culpability, inability and inaction – or a combination of all three - generally at flashpoints of political violence in the 20-year period since the restoration of political pluralism in Kenya have been at the heart of electioneering chaos. Kenya’s first Top Cop who wasn’t a police officer now also bears the dubious distinction of being the first Commissioner to face judicial investigation over political violence. Why 2007 had better be the last time the National Security State edifice is put to shame by political violence strategists. The confirmation-of-charges hearing at the International Criminal Court (ICC) at The Hague concerning Major General (Rtd) Hussein Ali, the CEO of the Kenya Postal Corporation, who was the Commissioner of Police during the 2007-08 post-election violence (PEV), ought to have been second only to Deputy Prime Minister Uhuru Kenyatta’s own appearance the previous week in terms of commanding public interest. Instead, surprisingly and saddeningly, even purely from a live TV audience ratings perspective, they were the most intricate, obscure and least watched. Granted, Uhuru’s own-witness testimony and Head of the Civil Service and Secretary to the Cabinet Francis Muthaura’s evidence complete with top-heavy high-profile government and political leaders’ testimonials, made for much more dramatic televised theatre than the Ali defence team’s painstaking and elaborate reconstruction of specific incidents at the height of the PEV. But the case against Ali ought to have been as compulsively gripping, if not indeed more, for the simple reason that police culpability, inability and inaction – or a combination of all three - generally at flashpoints of political violence in the 20-year period since the restoration of political pluralism in Kenya have been at the heart of electioneering chaos. What’s more, the $64 million question remains whether the phenomenon of the national police force (soon to be service) and its affiliated agencies appearing to be helpless in the face of politically instigated violence can safely be consigned to the past and with it the impunity invariably enjoyed by both the planners and perpetrators of such mayhem. After all, it was invented in Kenya under the watch of the Daniel Moi regime and later crossed over into the Mwai Kibaki era. There having been no competitive multiparty elections in the Jomo Kenyatta post-Independence era, with the lone exception of 1966’s Little General Election, called specifically to thwart opposition party KPU, there was no pre- or post-election violence. Instead, the Kenyatta era was marked by a series of high-profile political assassinations in the deadly decade of 1965-75, the likes of which was witnessed only once during Moi (Foreign Minister Dr. Robert Ouko’s slaying in February 1991) and not at all in the Kibaki era to date. Phenomenon of pre-election violence Before the 2007-08 PEV, all episodes of election-related violence in Kenya had been pre-election violence, often in the build-up to the campaign or during the campaign, never during Election Day itself or its immediate aftermath, including the announcement of disputed results. What’s more, before the PEV, disputants of Presidential election results either loudly badmouthed the entire process (for instance Kenneth Stanley Njindo Matiba in 1992) and then faded over the political horizon into obscurity, or went to court (Mwai Kibaki and Raila Odinga in 1997, with Raila dropping soon out of the case and instead going for a cooperation compact with the then ruling party Kanu. Kibaki and Raila are today the Principals of the Grand Coalition Government, as President and Prime Minister respectively. Only at the 2002 General Election was there no electioneering violence or disputation of the result, Kibaki’s clear-cut 3.6 vote landslide against Uhuru’s 1.8 million, making the latter the only major Presidential candidate to concede defeat swiftly and comprehensively in the multiparty era that begun in November 1991. The 2002 poll was the first one in Kenya to be a Presidential transition General Election, the second one being next year’s, that is, without an incumbent of State House in the running, which was easily the single greatest contributing factor to the absence of both pre- and post-election violence, because, whatever the outcome, there was going to be a new President after the election. The 2012 General Election will also contain a guaranteed State House change of guard and is the first national electoral event in Kenya not only under the new Constitution but also prefaced by crimes-against-humanity charges at the ICC featuring Kenyans. As such, it should be an election with a difference and pay the highest peace dividend in the history of Kenyan electioneering, given that it is so circumscribed by both local and international law and a watchful nation, region and world. The eve of such an election would have been an appropriate time to stop and reflect on the true nature of the history of political violence in the multiparty era and why Kenya’s national security state edifice has been both so incompetent and so complicit in it. Where did the rain begin to beat us so badly as to make electioneering seasons periods of low intensity terrorism against entire, selected, profiled and targeted sections of the population, instead of intervals of the most civilized political conduct, democratic free and fair elections? Ali’s confirmation-of-charges hearing should have thrown much more light on the phenomenon, but it largely failed to do so. Moi’s self-fulfilling prophecy Several Commissioners of Police have been in office since late 1991, when the infamous Section 2(a) of the then Constitution, which in 1982 had declared Kenya a one-party state and outlawed all other political activity except Kanu’s, was finally repealed. But only Ali, a career soldier and paratrooper, the only non-police-officer Commissioner of the Independence era, was ever hauled to court on a judicial attempt to hold him accoubtable. All the other commissioners retired with having to account for anything. In a grudging and ultimately self-fulfilling prophecy immediately Section 2(a) was repealed, President Moi promptly predicted that the return of pluralist politics would usher in a divisive and violent era. And so it did. Beginning with so-called tribal clashes in the Rift Valley, parts of Western and Nyanza provinces in 1991-92, marauding tribal warriors, many of whom moved with the suspiciously trained ease of former disciplined forces’ employees, descended on unarmed selected rural communities, maiming, raping, killing, burning, looting and displacing as they went. Despite Kenya’s famed national security state, first installed by the British during the 1950s and the Mau Mau State of Emergency, the clash warriors were never once challenged or pursued by the regular police, the Administration Police (a paramilitary formation), the Flying Squad, the Criminal Investigations Department (CID), which has an embedded Criminal Intelligence unit, the National Security Intelligence Service (which has a nationwide network of informers) or the Armed Forces of Army, Navy and Air Force. And this was despite and in spite of the fact that the warriors were maiming, raping, killing and displacing members of the populace who included relatives of all ages of some in the disciplined forces. Before the Kibaki era, neither were they probed effectively by any other organ of State, with the singular exception of the Akiwumi Commission of Inquiry into the Ethnic Clashes, which was conducted late in the life of the24-year-long Moi regime and seemed to be aimed at little more than ensuring that it was not conducted under a successor, but non-Kanu, regime. Failed national security state This failure of the national security state to protect sections of the population from ethnic clash warriors wreaking political violence on them, aimed expressly at influencing the outcome of the first multiparty General Election in a generation, had never been witnessed in Kenya before. It was an invention of persons in the power elite of the final years of the Moi Presidency, both in politics and in the multi-force disciplined services, both retired and active, who will most likely never be brought to book but whose horrifying formbook was left lying around after regime change in 2002. It was picked up and refined by other high ranking and well-connected operatives of another power elite and deployed to devastating effect at the fateful 2007 General Election, on both sides of the PEV. It would appear that the format and the thrust was the same, low intensity terrorism applied selectively at certain sections of the population, for instance Kikuyus in the Rift Valley, Luos, Kalenjins and Luhyas in Naivasha and Nakuru, using what is known in security circles and conspiracy communities as false-flag attacks, pointing the figure of accusations at warriors and Mungiki militia including when they were indeed involved and culpable. Ali’s defence in the Pretrial Chamber II concentrated almost all its energies in not addressing the longer-term issues and impacts in seasonal cycles of political violence. Ali’s lawyers Gregory Kehoe and Otachi Bwo’Omanwa instead took the extraordinary tack of asserting that the attacks in Nakuru and Naivasha were carried out by local residents and not the Mungiki murder cult as claimed by ICC Chief Prosecutor Luis Moreno-Ocampo and long reported by the media. In other words, the Ali team was cleaving to the business-as-usual evasion of the Kenyan national security state when faced with political violence – alleged spontaneity, regardless of all evidence to the contrary. As in the past, this begged many questions, not the least of which remains how local residents who had never so much as harmed anything but chickens slaughtered for a family meal could become such proficient, evidently practiced and cold-blooded killing machines as he perpetrators of the atrocities on both sides of the PEV undoubtedly were. ‘Proficient Spontaneity’ Ali’s first witness, trade unionist Peter Otieno, was reprimanded not once but twice by Pretrial Chamber II Presiding Judge Ekaterina Trendafilova for repeated failure to face the Bench during cross-examination by Prosecutor Desiree Lurf, keeping his gaze instead fixated on the defence lawyers, almost as if anxious not to miss a subtle cue. Said Trendafilova: “The Chamber was very embarrassed by you constantly facing this side [the defence] when you are being asked questions. I asked you to stop and yet you proceeded. You were constantly looking to your left in spite of me asking you to face the judges and the prosecutor”. The entire purpose of Otieno’s presence in the Pretrial Chamber, where he told of how he was rescued by police officers from a baying mob that had held his family hostage in Naivasha, was to vouch for the Police Force’s dedication and grace under pressure and the non-organized nature (and therefore presumably non-Mungiki nature) of the nonetheless massive violence and displacement. Ali’s defence spent enormous energies trying to establish distance between the force he had commanded and any element of Mungiki and trying to prove that the violence which uprooted at least 600,000 people and killed 1,300 was little more than a time of mass madness involving no long-range preparation and no police abetment of Mungiki gangsters. Perhaps the best thing going for Ali was the anti-Mungiki documentary televised in Kenya in 2008 and replayed in full in court, made for the Kenya Police by a private sector PR consultant. However, ultimately, even the documentary begged huge questions. Having asserted Mungiki’s repeated and far-flung murderousness and criminality long before the PEV in the powerful documentary, the defence at the same time asserted that the violence was spontaneous, unplanned, an implosion, more or less an amateur, not a professional, job. The impression of mealy-mouthed and evasive evidence was overwhelming, with or without Otieno’s shifty gaze. At the end of the day, the Ali defence flung up so much detail, including lists of police officers manning particular stations and posts by name, serial number and ethnic origin, that the forest of organized political violence in Kenya become invisible for the trees of the defence’s version of what transpired at the PEV. Among many other things, Ali’s personally harrowing experience at the ICC, even if it does not proceed beyond the confirmation stage, will almost undoubtedly serve as a “Never Again” moment and turning point for a national head of the police in Kenya. The Kenya Police Force is in the process of transitioning into the Kenya Police Service, headed not by a Commissioner but by an Inspector General for the first time since the last man to hold that office, the British official Richard Catling, in 1965. For a while yet, it will remain an 80,000-strong service of men and women trained much more in paramilitary ways than in civilian and community policing. But in its evolution from Force to Service, the Kenya Police will have to lose a lot of its paramilitary stance and disposition, hopefully leaving these to specialized special weapons and techniques (SWAT) units to be deployed only in emergencies, and acquire the soft power and public relations skills of community policing. That is the theory, the expectation and the ideal. The reality will depend a lot on whether Kenyans themselves evolve as a society and become deserving of a police Service rather than Force, become a people about whom there can be no doubt, no fudging, whether they are indeed capable of the atrocities of the PEV.