Truth, justice and the unbroken line of Kenya’s elites

By John Githongo
Posted on Thursday, 29 October 2015 09:57

This followed a seminal legal decision handed down by a British court in June 2013, bringing an end to an epic battle that had taken four years.

The court granted compensation to 5,200 now elderly Kenyans who had been the subject of torture and abuse at British hands during the Mau Mau rebellion. Just as importantly though, the British government also issued an unprecedented apology – concretised by this taxpayer-funded monument to those it had vilified and persecuted as a terrorist organisation.

In unveiling the commemorative plaque at the ceremony, British high commissioner Christian Turner quoted foreign secretary William Hague’s statement on the settlement of the court case in 2013: “The British government sincerely regrets that these abuses took place. Torture and ill-treatment are abhorrent violations of human dignity which we unreservedly condemn.” One can consider this an admission of guilt – hopefully not the last with regard to atrocities committed in the colonial era – that is unprecedented in the history of that empire. It follows another apology, this time for atrocities committed during the first four decades of independence and made by Kenyan head of state Uhuru Kenyatta in March this year, following a recommendation by the Truth, Justice and Reconciliation Commission.

It is ironic that while the Mau Mau veterans celebrated this belated measure of recognition – and, with it, the raising of the possibility of a measure of justice and reconciliation – politicians allied to President Kenyatta and deputy president William Ruto were holding ‘prayer rallies’ in relation to the charges still pending against the latter at the International Criminal Court (ICC). Both had been charged with crimes against humanity related to a spasm of violence that exploded after rigged elections in 2007.

The violence was so intense that civil war might well have broken out had it not been for the intervention of the international community and civil society. In the elections that followed in 2013, Ruto and Kenyatta – who were on opposite political sides in 2007 – united against the ICC process.

[At independence] imperial impunity was grafted onto the DNA of the incoming elite

Their campaign in the run-up to the polls, and their conduct of national affairs immediately after controversially being elected while under indictment, created the most focused foreign policy in Kenyan history: kill the ICC charges at all costs. The question of justice for the victims and survivors became a closed one.

Justice, therefore, sits uncomfortably with the Kenyan elite in general. Kenya, in ways similar to, say, Algeria, Zimbabwe and South Africa, was constructed out of imperial impunity. In Kenya’s case, the impunity was grafted onto the DNA of the incoming elite. This explains why the project to recognise the abuses of the Mau Mau period was led by civil society not the state.

The Kenyan elite’s strained relationship with truth and justice has in turn created a system that is under pro vfound strain, especially since the promulgation of a liberal constitution
in 2010 as part of the settlement that followed the 2007/2008 national near-death experience. As a result, profound complexity and contradiction prevail.

The most pressing contradiction is between the liberal constitution and the structure, traditions and culture of the ruling elite. The latter’s fight against the ICC has drawn legal, reputational and bureaucratic blood from an international institution with ruthless and successful alacrity no developed or developing world elite had ever managed to achieve.

The impunity expresses itself in economic crime as well. On the one hand, East Africa’s largest, most dynamic and innovative economy has thrived on the resilience and pragmatism of the Kenyan people.

Kenya now scores lower than Nigeria on the Corruption Perception Index

It has succeeded despite Kenyans’ willingness to tolerate the ethnicised patronage politics that have polarised the country and pillaged public coffers. The model worked, as long as elites could keep ‘eating’ with a measure of restraint; as long as an invisible line was not crossed to plunge the diversified economy into stagnation and put at risk the critical pillars – the education, security and health systems – that would make it wobble.

The wobble is now on. Part of the reason is demographic: there were eight million Kenyans when the Mau Mau rebellion ended in 1960 and there are around 46 million today – 475% growth in half a century. In this context, funding the ‘eating’ is expensive and economically deleterious. Public spending is out of control. The public debt has doubled in five years.

For the elite, keeping the contradiction from becoming an out-and-out failure of the state has fuelled corruption to an extent unprecedented even for Kenya. Everyone is allowed to ‘eat’ and elements of the elite think everyone can be bribed into a generalised acquiescence around a status quo that even they have not completely defined.

Kenya now scores lower than Nigeria on Transparency International’s Corruption Perception Index. And, yes, the comparison matters in deep ways that are essential to how the Kenyan elite defines itself in the African and global context.

The connection between security and corruption is important because it takes us back to the kind of state-sanctioned abuses that brought us where we are now. High commissioner Turner, in his speech at the unveiling of the monument, narrated how attempts to redress the system during the state of emergency were robustly resisted and defeated, compounding the pain and suffering visited upon thousands of Kenyans and leading to the eroding of state legitimacy in large swathes of the population.

It would not be farfetched to argue that Kenya is not very far from the same today. The centralised control of corruption for political patronage purposes is morally bad but makes for a more predictable policy environment. Even if the policy is that you must bribe to obtain public goods: you know who to bribe, how much and when.

The current free-for-all is particularly unsettling to the private sector. They find themselves victims of an old elite stuck in time-worn ways but whose grip is corrupt but strong, chaotic and brittle. The elite tries to mitigate the effects of a liberal constitution voted for in a moment of existential regret, and in which the devolution of power to 47 counties has been utterly transformative. And yet, Kenya is surviving instead of thriving. Our rapacious elite can be held responsible for this unsatisfactory condition.

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