Leashing Kenya’s Dogs of War: A Theoretical Assessment

From the standpoint of constitutional law, the ICC’s handling of cases arising from Kenya’s post-electoral violence represents the ceding of judicial autonomy of the state to an ‘exceptional court’. The establishment of a special local tribunal which supplants the supervisory jurisdiction of the High Court and strips the president and attorney general of constitutional powers and immunities has a similar effect. Either way, by failing to proceed with the proposed local tribunal, the Kenyan state has clearly endorsed the ICC option. So what would motivate a state that is for all intents an authoritarian regime,[i] to nudge the ICC into action? This essay reviews some of the key literature on why states judicialize politics or delegate judicial processes to auxiliary courts, interrogates some of the constraints, and provides possible pointers to successful trial in the Kenyan context.

On the one end of the spectrum, Tamir Moustafa’s research on judiciaries in transitional contexts suggest that even though courts are often transformed into spaces for reinforcing the role of legal norms in mediating politics, authoritarian regimes generally use courts for at least five reasons: social control, legitimation, controlling administrative agents, creating credible commitments in the economic sphere and delegation of controversial reforms.[ii] While some of these reasons may not hold in the Kenyan context, some could. For instance, it should not be difficult to imagine how control of administrative agents will be achieved through ‘disciplining’ political elites otherwise untouchable by the political system, hence securing elite cohesion which has been otherwise quite elusive. Similarly punishing the perpetrators of the violence would reinforce commitment to the rule of law; an important ingredient in the stability of property rights and an incentive to economic investments. Mustafa seems to find support from transitional justice scholars such as Bronwyn Anne Leebaw, who argues that law and by extension, courts, can be “utilized to obfuscate and legitimate abuses of power.”[iii] The offshoot of this position is that it is possible to have trials of suspects of the post electoral violence without any corresponding attainment of their transformative intent. Consequently, Kenyan civil society should be alive to this possibility and hence pursue a framework that will achieve substantive justice particularly for victims.

It can be opined in opposition to Mustafa’s contention that Kenya is genuinely keen on meeting its international obligations under both the Rome Statute and the Genocide Convention among others as evidenced by its willingness, albeit unsuccessful, to establish a national mechanism for the trial of post-electoral violence perpetrators. In this sense, Kenya can be said to be committed to ensuring adherence to international criminal law-both customary and positive. Kenya’s attempted judicialization of political differences through an international criminal process facilitates enforcement hence compliance with such norms.[iv]  This argument is however unsupportable in view of the glib manner with which proposals in parliament have been made to the effect that Kenya should withdraw from the Rome Statutes in order to deny the ICC jurisdiction over the Kenyan trials.[v] A country buoyed by aspirations to comply with international standards would be unlikely to propose such actions. Instead, what emerges from this position is that the Kenyan state will not pursue normative compliance if the political and social cost associated with it is, in the short term, onerous. The determination of such cost-benefit balancing is certainly a highly subjective exercise, which in the Kenyan case, is laced with the politics of the post-Kibaki presidential positioning.

The most common justification currently advanced in support of international trials for Kenya’s war crimes suspects are based on the desire to end impunity.[vi] What this means, among other things, is that by punishing perpetrators, retributive justice is effected for the victims, and an increase in likelihood of punishment of political elites will ensure that such crimes do not recur in future. Deterrence theory in criminology, on which this proposition is based, does not anticipate that officials who have already committed human rights violations will be stopped from committing further violations.  Rather, the concern is with how sanctions affect future behaviour of other actors.  Of particular relevance is the finding that beliefs about the likelihood or probability of arrest and punishment in human rights cases have more deterrent effects than increases in the severity of punishment.[vii] Deterrence research also suggests that deterrence is more effective for individuals who have a higher stakes in society,[viii] which would seem to include the kinds of state officials complicit in Kenya’s killings. Katherine Sikkink’s latest research on effects of human rights trials at the domestic level provides quantitative support in favour of the deterrence effect of such trials.[ix] One of her hypothesis was that countries that have held human rights trials will see greater improvements in human rights practices than those countries that have not held human rights trials. Her research, based on a survey of 192 countries, including a good number of African states, suggests that those states with more accumulated years of trials after transition are less repressive than countries with fewer accumulated years of trials, and that truth commissions are associated with improvements in human rights practices, but that trials have a stronger effect than truth commission.[x]  Similarly, Arriaza argues that human rights trials, either domestic or international are both legally and ethically desirable and practically useful in deterring future human rights violations.[xi] Although deterrence and compliance theories may converge at the level of impact, the later looks more at state conduct in the international sphere while the latter considers social transformations engendered at domestic level by targeted criminal proceedings. Both deterrence and compliance theories are further consistent with rational choice thinking on this issue which suggests that state officials and politicians choose impunity and repression because the benefits of such action exceed the cost.[xii]

Realizing deterrence in the Kenyan context will however be problematic if the current collectivization of culpability or victimhood is not brought to a halt through both coercive and persuasive means. By ascribing to ethnic groupings blanket guilt or innocence, it is likely that collective mobilization of communities will mute the deterrent effect of such trials. Instead, the outcomes of such trials will be rationalized away from justice and towards vindictiveness.  Deterrence effect can be nurtured however, if prosecutions are seen to apply across ethnic cleavages so that the sting of victors’ justice is stayed. Nonetheless, this approach may not be practical, especially if aggression preponderates in a particular community more than in others, a most likely scenario in the Kenyan case.

In contrast to deterrence and compliance supporters, realist scholars problematize trials as a vehicle for attaining social cohesion. For instance, some scholars of this persuasion argue that trials or threat thereof could destabilize new democracies and lead to coups. They hold that ‘fragile states’ that undertake such trials could “commit suicide” by dramatizing high profile persons’ arrests and incarcerations. They further argue that the threat of prosecution could cause powerful dictators or insurgents to entrench themselves in power rather than negotiate a transition from authoritarian regimes and/or civil war.[xiii] Snyder and Vinjamuri posit that “Policies and institutions of humanitarian justice are destined to fail” and that “recent international criminal tribunals have utterly failed to deter subsequent abuses in the former Yugoslavia and in Central Africa.”[xiv] In the same line of thinking, Mahmood Mamdani has disputed the efficacy of indicting Sudan’s President Omar Al Bashir on the grounds that such attempts will neither secure stability in Sudan nor halt the blood letting in Darfur. In this regard, he called for the subordination of criminal accountability to the larger pursuit of political reforms.[xv]  While no coup is likely to happen in Kenya, the salience of this theory is obvious, and could explain the cabinet’s decision to shelf the pursuit of a local tribunal. Indeed, many calling for justice to be tempered with reconciliation have argued that the pursuit of justice should not come at the expense of the survival of the state. Proponents of this view have however failed to show how such trials will imperil the Kenyan state. Kenya, unlike Iraq, Sudan, Democratic Republic of Congo or even former Yugoslavia whose examples are utilized by Vinjamuri and Mamdani, has stronger institutions, notably an independent military,  that can cushion the state-assuming that pressure emerging from high profile international criminal trials warrant some form of state intervention. Be this as it may, what is certain is that without the political commitment to the impartial use of such institutions, it is possible for state action to be misjudged as serving partisan interests.

In conclusion, this paper has presented a diverse body of knowledge that could be deployed in the assessment of Kenya’s decision whether or not to try the lead perpetrators of the post electoral violence. Such an assessment, the essay cautions, must be alive to emerging empirical evidence in favour of the deterrence effect of trials over mere truth telling. This essay’s advice is that the success of the Kenyan trials will depend largely on the extent to which ethnic mobilization is checked ex ante. A comprehensive and sophisticated outreach strategy is an important coefficient to this, as is a framework for prosecutions or other forms of transitional justice that is consultative, accountable and above reproach. Kenya’s fractured politics would undoubtedly have been tested most severely by a local tribunal whose proceedings Kenyan and international media would cover extensively. Consequently, a responsive media able to provide balanced and sensitive reporting that would give dignity to the victims of violence and hate will be important. In the end, Mamdani’s assertion that deterrence may result from prosecution only when the same rules apply for all war criminals, regardless of national origin or political orientation,[xvi] is appropriate for the Kenyan cases as in Sudan’s Darfur.

---

[i] Kenya was ranked number 103 out of 167 countries in the Democracy Index 2008. This ranking placed it in the hybrid category together with Iraq and Sierra Leone, just a few countries from fully authoritarian regimes. See, Freedom House, Democracy Index 2008 available at http://www.economist.com/media/pf/Democracy_Indec_2008_v3.pdf>.

[ii] Tamir Moustafa and Tom Ginsburg, ‘Introduction: The Functions of Courts in Authoritarian Politics’, in Moustafa & Ginsburg eds., Rule By Law: The Politics of Courts in Authoritarian Regimes (London, Cambridge University Press, 2008) p 1.

[iii] Bronwyn Anne Leebaw, ‘The Irreconcilable Goals of Transitional Justice Human Rights Quarterly Vol. 30, no. 1, 2008, p. 97.

[iv] See e.g., Downs G. W. D. M. Rocke, et al. ‘Is the Good News About Compliance Good News About Cooperation?’ International Organization Vol. 50, no.3,1996, pp. 379-406.

[v] See, Nairobi Chronicle ‘ Kibaki, Raila find Truth Commission an Easy Way Out (July 26, 2009) available at http://nairobichronicle.wordpress.com/2009/07/26/kibaki-raila..> (accessed July 27, 2009).

[vi] See, e.g. Reuters, ‘Most Kenyans Want Violence Suspects Tried by ICC’ available at http://www.alertnet.org/thenewsdesk/LI445650.htm> (accessed July 18, 2009).

[vii] Bueno de Mesquita,, ‘Self-Interest, Equity and Crime Control: A Game Theoretic Analysis of Criminal Decisions’, Criminology  Vol 33.,1995, pp. 483-517.

[viii] See generally, Nagin, D. S., Ed, Criminal Deterrence Research at the Outset of the Twenty-First Century. Crime and Justice: A Review of Research (Chicago, University of Chicago Press, 1998).

[ix] Katheryn Sikkink and Carrie Booth Walling, ‘Errors about Trials: The Emergence and Impact of the Justice Cascade’, Paper to be presented at the Princeton International Relations Faculty Colloquium, March 27, 2006 available online at http://www.princeton.edu.Piirs/callenders/Sikkink%20paper.pdf> accessed July 20,2009).

[x] The author attended a seminar held March 13,2009 at the University of Minnesota Law School, where Professor Sikkink and her colleague, Hunjoon Kim, presented initial findings in a paper titled ‘Do Human Rights Trials Make a Difference?’

[xi] Roht-Arriaza, N., The Pinochet Effect: Transnational Justice in the Age of Human Rights. Philadelphia, PA, University of Pennsylvania Press. Roht-Arriaza, (2005).

[xii] Poe, S. C., N. Tate, et al. (1999). ‘Repression of the Human Right to Personal Integrity Revisited: A Global Cross-National Study Covering the Years 1976-1993.’ International Studies Quarterly Vol. 43 no.2 pp 291-313.

[xiii] Goldsmith, J. L. and S. D. Krasner (2003). ‘The Pitfalls of Idealism’, Daedalus Vol. 132, no.1, pp 47-63.

[xiv] Jack Snyder and Leslie Vinjamuri, ‘Trials and Errors: Principle and Pragmatism in Strategies of International Justice’, International Security Vol. 28 no. 3,Winter 2003/04 pp. 5-44

[xv] Mahmood Mamdani, Beware of Human Rights Fundamentalism (March 26,2009) available at  http://www.pambazuka.org/en/categ ory/features/55143>.

[xvi] Mamdani, ‘Human Rights Fundamentalism’

Customary Law and Conflict Resolution Among Kenya’s Pastoralist Communities

 Introduction: The Inevitability of Legal Dualism in Africa

Law is the main device used by a state to regulate the affairs of its population in order to facilitate orderly conduct of both the public and private spheres. By historical circumstance or reasons of limited capacity, Africa’s post-colonial states have by design left certain domains of citizens’ behaviour outside the reach of formal law. Similarly, some parts of the country where state presence is minimal, traditional systems are permitted by default to exist side by side with a state run justice system in order to reduce transaction costs. Historically, many African states, including Kenya, permitted the intermediation of customary law in redressing matters of a personal nature, notably marriage and devolution of property upon death while matters criminal remained the exclusive jurisdiction of formal legal systems. This is largely explicated by the fact that imported colonial laws were at such great variance from the norms of African communities that their imposition would lead to more conflict and would further increase the cost of enforcing compliance. Hence, dualism, a hybrid legal space, where more than one legal or quasi-legal regime occupies the same social field, is a key feature of most African legal fields, including in Kenya.

While many legal positivists do not admit it, customary law in Africa has a stand alone basis for its existence beyond merely filling in the gaps left by states’ legal devices. Customary law’s intervention is seen as addressing an area where ordinary criminal or civil sanctions have failed. They become particularly relevant in the African society which while increasingly individualized continues to exhibit a collective impulse. Given the non-atomization of individuals in African states and the fact that belonging to groups is still a salient reality, there must be a place for the deployment of community mechanisms in addressing disputes that transcend the individual and have pervasive impacts on the group. Statutory law has appeared quite incapable of providing redress to matters in the nature of the collective. It is this area of intersection between the group and the state (Adejumobi, 2001) which is mediated by norms of customary law. Rather than appreciate the robustness of customary law in the African context, its place has always been subordinated not only to statutory law but also to the edicts of an amorphous matrix of ‘public policy, health and morality.’ Regrettably, customary norms remain a lesser child of the law, a position that undermines its growth, adaptability and resiliency.

Conflict particularly mass violence has been addressed poorly by statutory law. This is largely because mass violence generates a complex matrix of breaches of criminal, civil law-land and political issues- the sheer scale of consequences always leaves a residual effect which most legal systems cannot adequately address. Moreover, conflicts although capable of being resolved through notions of individual culpability also destroy community cohesion, a domain that written law cannot adequately and immediately confront

In what ways then has customary norms of indigenous communities contributed to conflict resolution in Kenya, an area where statutory norms have registered abysmal failure?

Northern Kenya: Incomplete Statehood

The colonial government instituted the original policy framework segregating the northern rangelands from Kenya proper, creating the Kenya of the South and North. The nomads of northern Kenya were seen to be antithetical to the colonial enterprise because of their geographic location from the centre in Nairobi as well as their livelihoods which clashed with the colonial imperative of settling communities in order to extract value through modern agriculture and taxation. In Northern Kenya the colonial government legalized the use of military muscle and administrative fiat to quell any pastoralist resistance to the Pax Britannica, setting the foundation for the instrumentalization of violence as the ultimate arbiter in the region. Emergency laws passed immediately after independence to quell the pro-Somali militia, Shifta, gave the new African-led government legal carte blanche to combat the shifta insurgency. What began as a legitimate struggle for self-determination quickly degenerated into widespread banditry. The firearms remaining after the rebellion officially ended, and the need to restock depleted herds accounted for high levels of cattle raiding and highway robbery afterwards. North-eastern Province has since then been synonymous with insecurity. Consequently, any constitutional rights of most minority communities in the north were foreclosed for years.

During the 1990s, it became clear that the conventional methods of addressing conflict through the use of either brute force or formal judicial means were no longer capable of containing the north’s intensifying conflicts. The opening up of Northern Kenya’s civic space courtesy of the countervailing forces of democratization that was sweeping the entire country, provided new opportunities for communities to rethink new ways of addressing entrenched inter-tribal/clan conflicts. The answer was to seek resolution located in timeless customary norms of these communities, which although heavily undermined or manipulated during the immediate colonial and post-colonial era (Mamdani, 1996; Joireman, 2008), still remained relevant as the legitimate motif for resolving intractable conflicts. In the case of Northern Kenya, recourse to either pure forms of or  re-imagined customary institutions appears to have been the only choice given the sheer non-existence or total unresponsiveness of state-led dispute resolution mechanisms. Recent studies indicate that formal courts in northern Kenya, are few, bureaucratic and are often seen to dispense a type of justice that is either too long in coming or has retributive rather than reconciliatory impact on the concerned individuals and communities (Tanja Chopra, 2009).

Seeking Pure Customary Justice: The Borana and Gabra Model of Peace

The Borana and Gabra pastoralist peoples of Northern Kenya and Southern Ethiopia engaged in a violent conflict with one another that reached a peak in the atrocities of 2005, even though they are closely linked linguistically, territorially and socially. In what has become known as the Turbi massacre, 100 members of the Gabra community were killed in the morning of July 12, 2005. during this incident attributed to the military wing of the Borana community, hundreds of men armed with an assortment of weapons, ranging from AK-47s and grenades to machetes and spears, descended on the village of Turbi with the aim of slaughtering as many people as possible. Three days after the massacre, with ethnic tensions still running high, the Roman Catholic Bishop of Zica, Luigi Locati, was shot dead in Isiolo, 300 Kilometres away from Turbi.  The escalating disputes grew in an entanglement of legal, political and economic tensions that were local, national and geopolitical. Political leaders hitherto reluctant to engage each other launched a peace campaign, which was unfortunately cut short exactly a year later when a Kenya army plane carrying 6 members of parliament crushed before landing in Marsabit.

            Shocked into action by the painful events of one year, the Gabra and Borana communities launched a peace process under their traditional systems. Peace was finally restored in 2009 after a process that drew on a combination of tradition and innovation. The peace was formally initiated by the customary councils of the Borana and Gabra – the gada and yaa – which sent out messages reminding the people of the ancient laws that relate to peace. Customary law (aada) encompasses religious, judicial and cultural aspects of Borana and Gabra life and is widely respected. The messages of peace travelled from the councils to spiritual leaders, judges and clan leaders (jalaab), and on to men and women, herders, townsfolk, elders and youth. The messages moved from one person to another in the form of daimtu, a conversation whose basic form is to ask “Do we have peace?” to remind, “We should have peace” and to ask, “How can we have peace?” ( Pastoralist Shade Initiative, 2010).

 Inarguably, among indigenous pastoralist communities of Northern Kenya, elders have been the vanguards of peace. The elders are able to do this because of their control of access of resources, being part of a network of clan/ethnic structures and because they commanded respect and legitimacy on account of their age (Kratli & Swift, 2000). Elders are still regarded as the custodians of cultural norms/practices as well as being the depository of knowledge and cultural heritage (Makumi Mwagiru, 2001). Among the Oromo of which the Borana are part, elders form a dominant component of the customary mechanisms of conflict management (Watson 2001).

Over a period of four years, the elders from the Gabra and Borana communities under the Pastoralist Shade Initiative continued taking messages and holding meetings, including in places where people did not want or believe in peace. Finally, when they were confident that agreements had been largely reached, they called pastoralists, politicians and officials to public peace gatherings. The gatherings were done on pastoralist terms, according to traditional rules. One after another, in a series, each meeting built on the last to confirm and expand the area that was at peace. By June 2009 the fighting between Dillo and Dukana came to an end. By July the peace had extended across Chalbi and North Horr in a meeting at Maikona. By August it embraced Turbi, Rawan, Walda and Sololo, places where politics and insurgency had complicated the situation and weakened leadership.

The ‘Maikona Declaration’ is a short agreement prepared at Maikona and signed by Gabra and Borana representatives at Walda. It sets out the specific laws that relate to keeping peace. After agreeing to accept ebb, a blessing that allows for amnesty in the traumatic histories of the war, the people agreed to revive the implementation of traditional laws. The implementation involves a combination of traditional and state justice systems, in which thefts and injuries are dealt with by both systems of law operating in agreement. At the Walda gathering, the last in the series, the District Commissioner Chalbi had the Declaration written in English and ordained that copies be pasted on administration office walls across the district.

Social contracts, such as the Maikona Declaration and its predecessor, the Modagashe Declaration, have had great impact in mitigating conflict in spite of the fact that they are not legally binding. According to Chopra, “the declarations and the work of the peace committees have had a positive impact on solving persisting conflicts in their areas. In Isiolo, for example… the number of conflicts since 2001 has decreased due to these agreements. The amount of cattle raids are said to have decreased, more cattle are returned and less killings occur.” (Chopra, 2009). The dilemma presented by traditional peace models is that local concepts of communal responsibility for crimes rather than individual responsibility. Under the paradigm of the official law, that means that individuals within a group are held liable for crimes that they did not commit. While this communal responsibility is an important factor of internal social control, implementing it under the declarations is at odds with the norms of the official laws.

The Re-imagined Traditional Model: The Wajir Peace Committee

            Given the perceived non-compliance with formal law on the part of pure customary models of justice such as that employed by the Borana and Gabra, more integrated systems have been attempted. The Wajir Peace Model which emerged out of the internecine resource based inter-clan conflicts in the 1990s one such model. Given the context in which this model was tested, it is much less structured because of the immediacy with which it needed to be deployed. The severe drought in 1992 had decimated over seventy percent of cattle and thirty percent of camels in the Somali community in Northern Kenya.  Natural resource conflicts became increasingly violent with each clan seeking to safeguard the fragile water or grazing resources. Deaths followed incidents between the Ogaden and Degodia clans over alleged land encroachment and violation of political space. Women from that clan refused to sell or buy food items from women of the Ajuran clan, and would not allow them entry to the market. Generally, tension heightened.

With the help of Kenya’s provincial administration and police, Somali women leaders and professional women from all the clans met and formed a Joint Committee of all the clans to act as a vigilante body to forestall the violence. The normative framework that defined the soon to become Wajir Peace and Development Committee (WPDC) was a combination of Somali norms and state sanctioned guidelines. The Wajir peace initiative’s main success has been its ability to revive basic Somali traditional methods of conflict resolution used in pre-colonial times to encourage the equitable sharing and access to the region’s limited resources. Another notable achievement has been the ability to harness energies and resources (that would have otherwise been used in conflict) for development. The initiative has also promoted the use of traditional early warning systems to forestall conflicts in the region. Most importantly, the organisation has been able to “export peace” to other districts of the region and Kenya at as a whole. Where other initiatives have failed, the Wajir peace initiative has managed to create and sustain vertical and horizontal integration strategically necessary for implementing long-term peace-building

Infrastructure support was provided with help from the donor community. Public meetings and discussions involved a full range of community leaders. A new, more consultative atmosphere prevailed. Workshops delved into the roots of conflict, and how it related to the actual economic conditions facing the people of the region.  Within five years the group had touched almost everyone’s heart in the region and beyond, especially for its use community resources and constant dialogue as tools for conflict resolution and peacebuilding.

The resulting structure, the Wajir Peace Committee, brought together community elders and government officials as well as civil society with the aim of providing a safe space for mitigating conflict. In its deliberations, the committee deployed customary praxis as the most important foundation for creating dialogue and paving the way for trust-building. So popular did this model become that by 2004, when the Kenya government begun to formulate a peace building policy, they were adopted as the structure whose replication across the country should be supported. The events of 2007 in Kenya, provided an opportunity to do just that and presently, nearly all districts in Kenya have district peace committees. The resiliency and adaptability of customary structures seem clearly vindicated.

Conclusion

Elinor Ostrom, the 2009 Nobel Peace price laureate has noted that with “simple, local mechanisms, to get conflicts aired immediately and resolutions that are generally known in the community, the number of conflicts that reduce trust can be reduced” (Ostrom 2000).  Such collective action regimes as represented by both the Borana-Gabra model on the one hand and the Wajir Peace Committee on the other cannot be ignored. This is particularly so where the transactional costs associated with formal justice systems in Kenya, be it cost, delay, relevance or corruption, are prohibitively high.

Need to Overcome Semantic Manipulation of New Constitution

Although the National Accord was a political deal between combatants designed largely to halt the bloodletting witnessed in the aftermath of a messy electoral process in 2007, the referendum on Kenya’s constitution in August 2010 effectively transformed the Accord into a compact between Kenyans and their rulers. By the overwhelming vote in favour of the new constitution, Kenyans asserted the importance of the Accord in the transition from an anomalous presidential system in 2010 to a pure presidential system based on clear checks and balances in some measure by 2012. By this act, Kenyans imported the “consultation between the president and the prime minister” in this transitional period into the solemnity of its constitutional text. The consultation between the two principals is then one of the condition precedents for the appointment of key constitutional office holders.

The current tussle regarding the legality of the president’s unilateral decision to nominate the chief justice, attorney general and two others without sufficiently consulting the prime minister calls for an understanding of the normative requirements that would ensure compliance with constitutional consultation embodied in Kenya’s new constitution.

The plain meaning of the verb “consult” means “to confer, discuss or decide an issue.” If unambiguous, words in law should be interpreted in their plain and natural meaning unless this meaning leads to absurd outcomes. According to Justice Blackstone, the intention of a law is to be gathered from the words, the context, the subject-matter, the effects and consequence, or the reason and spirit of the law. Proponents of the unilateral presidential decision of appointment have argued that consultation is not consent or approval implying that the president was under no obligation to secure an agreement from the prime minister in relation to the four appointments. These proponents seek an interpretation of consultation as a process and not an outcome. Such an interpretation means that the prime minister has no choice but to agree with the president’s choice and all that is required to satisfy constitutional consultation is for the prime minister to be informed of the president’s proposals before such proposals are submitted to parliament or made public. This narrow interpretation of consultation negates the spirit of the national accord (which now has constitutional character) and whose purpose is to facilitate “real power sharing” between the principals until 2012.

Moreover, read in context, the present constitution emphasizes consultation between national and county governments as well as between various constitutional organs. For instance, Section 205 envisions consultation between the Commission on Revenue Allocation and both the national assembly and Senate in any financial matter concerning the county governments. Section 220(1) (c) mandates parliament to formulate legislation that will among others provide the framework for consultation between national and county governments in the budgetary process. Similarly, the transitional and consequential arrangements in schedule eight require that the Attorney-General consults with the Commission for the Implementation of the Constitution (CIOC) in the preparation of the relevant Bills for tabling before Parliament, as soon as reasonably practicable, to enable Parliament to enact the legislation within the period specified. Were consultation an empty process, it would mean that parliament would most likely enact a law that renders meaningful negotiation between county and national government a mere formality lacking in substance. Similarly, the constitutional requirement that the AG and the CIOC consult before originating legislation to give effect to a specific aspect of the constitution would be thrown into a state of uncertainty.

Consultation was the answer to Kenya’s fractured and tribalized politics post 2007.

This is because, consultation seeks to build consensus in a manner that unites various constituencies instead of dividing them. It encourages diversity of opinion and acts to control the struggle for power that is otherwise so common in traditional decision-making systems. When followed, this principle encourages those ideas that spring forth from a sincere desire to serve, as opposed to ideas that emanate from a desire for personal aggrandizement or constituency-building. Consultation has overlapping requirements of reasonableness, fairness, open mind, freedom from demands, and the need to avail oneself of the consultation opportunity. In the realm of environmental and human rights law, consultation means that those consulted must be given a reasonable opportunity to state their views. While those consulted cannot be forced to state their views, they cannot complain, if having had both time and opportunity, they for any reason fail to avail themselves of the opportunity.

In the end, when two physicians ‘consult’ over the seriousness of a health condition, it is important that they reach some consensus on the remedy they will prescribe. Given that Kenya’s judiciary has for long been ailing from a complex range of maladies, it is important that the current political physicians understand that they have few choices and short time in re-legitimating this institution.

Kenya’s Electoral System: Failed Thinking in the New Constitution

Sometimes in 2010, Najib Balala, one of the leading luminaries of the Orange Democratic Movement (ODM) apologized to President Kibaki for Moslems' rejection of Kibaki’s candidature in 2007. One of the questions raised by Balala’s ‘apology’ to Kibaki  is the extent to which a vote in the first-past-the post electoral system used in Kenya in 2007 is a true expression of a voter’s real preference. Put differently, does a system that assigns equal weight to every vote without measuring the intensity of a voter’s preference generate truly democratic outcomes?

This matter is relevant to the Kenyan scenario. In 2007, three strong candidates-Kibaki, Kalonzo and Raila- vied for the presidency, and between them 99% of the votes cast were divided. At the end of this heated election, thanks partly to an inefficient and compromised electoral body but also due to the fact that only a few thousand votes separated Raila and Kibaki, it was near impossible to determine an outright winner. Could Kenya have avoided the violence that ensued by the adoption of a different electoral system? The answer to this question will, in my view, explain Balala’s apology.

It will be recalled that in the run-up to the much maligned elections, proposals to reform the electoral benchmarks were tabled by the Paul Muite-led Parliamentary Committee on Justice and Constitutional Affairs. Essentially; these proposals would have required that a president elect secures a supermajority. Apart from garnering a simple majority victory and at least 25% of the votes in five provinces as currently mandated, the proposals required a president to be additionally voted for by at least 50% plus 1 of the voters.  Absent this threshold, a run-off between the two best performers in the general elections would ensue. This is one approach which has worked in emerging democracies including Ghana and Sierra Leone. More established democracies including France also pursue this system. This system is however arguably expensive considering that a fresh election would have to be organized. Further, it could exacerbate existing tensions to manic levels especially in the transitional period between the initial election and the run off. In an atmosphere polluted by the politics of ethnic balkanization such as our own, there is no guarantee that a run-off outcome would not suffer similar credibility crisis as did the 2007 elections. Moreover, institutional failures both at the electoral body and within the broader security and justice sectors could undermine the run-off.

A more efficient system can however be created; one in which the run-off scenario rather than actual is merely simulated. This can happen if Kenya adopts an alternative vote system which gives a voter the opportunity to rank, not only their number one candidate, but also their number two, three and so fourth candidates. In a context in which the votes are too close to call or where none of the candidates receives a supermajority,  the electoral body would simply simulate a run off by carrying out an analysis of not just the number of votes received but also their intensity. In the 2007 elections for instance, the electoral body will have considered how many of Kibaki’s voters had Raila as their number two preferred candidate; how many Raila candidates had Kibaki as their number two preference and how Kalonzo’s voters viewed the two. Indeed, the current coalition arrangement is intuitively a fair representation of such an analysis, albeit outside a coherent constitutional framework. By choosing to support Kibaki over Raila in the tussle for the presidency, Kalonzo’s posture suggested that his supporters ranked Kibaki higher than Raila, and would have voted for him in the event of a run off. Hence one way of rationalizing Balala’s assertion is to argue that even though Muslims largely voted for Raila in 2007, Kibaki was their second close preference, and could have received their backing in the event of a run-off. Admittedly, the alternative vote electoral system is also not fool proof, but at least it does capture the question of intensity of voter preferences, which bears on the quality of the democratic choice. Unfortunately the new constitution adopted in August 2010, adopted the 50% plus 1 rule which although better than what pre-existed it, is costly in monetary terms as well as in relation to instability during the period between the first and runoff elections.

Balala may be a political turncoat or a politician with an axe to grind, but his recent apology to the president on behalf of Moslems suggests that Kenya should think seriously about its electoral system. Unfortunately, the new constitution did not go beyond the obvious dichotomies of choices between a presidential and parliamentary system. Instead, one would have hoped that the search for options for deepening democracy should additionally focus on electoral arrangements that will most answer to a country that is so diverse and politically polarised. It is now for the judiciary to interpret the new constitutional provisions using a more rational lense.

In the end, the pure majority rule that now obtains cannot be reconciled with the idea of maximizing social welfare because it ignores the preferences of minorities. It is no accident that long lived democratic systems deviate from this unalloyed version of majority rule by having several layers of representation and by requiring, in numerous settings, supermajority or near consensus.

THE AFRICAN GROUP: FRIEND OR FOE OF AFRICA’S ASPIRATIONS?

Kenya has a strong defender at the UN-the African Group. So does Sudan. It comes as no surprise that the African Group condemned the harsh indictment of Kenya’s prosecutorial and policing authorities by the special rapporteur on arbitrary executions, Professor Philip Alston. Similarly, this same group was in the forefront of Kenya’s defence for its invitation of General Bashir in flagrant disregard for its obligations to the International Criminal Court. A keen observer of the attitude of this regional grouping of fifty six countries will have noticed that its’ actions have consistently been Statist in orientation and largely anti-human rightist. To its credit however, the African Group appears extremely interested in ensuring that issues of global economic inequality are mediated and that Africa benefits from globalization. It is important to consider the genesis, contested role and achievements of the African Group, lest its recent defence of Kenya is over-emphasized or ignored.

Arising from Africa’s historical marginalization from the more domineering UN Security Council (SC) charged with ensuring global peace and security, the choice of forum for its diplomatic activities has largely been concentrated at the UN General Assembly (GA), where it commands significant numerical majority. It is therefore within the GA that the African Group flexes its muscles and dramatizes its role, often in coalition with the other developing countries’ groupings, notably Asia. The GA is the chief deliberative, policymaking and representative organ of the United Nations comprising all 192 members of the UN. Indeed, it provides a unique forum for multilateral discussion of the full spectrum of international issues covered by the Charter including the promulgation and codification of human rights standards, both declarative and treaty instruments. To the extent that the GA has adopted a number of significant human rights instruments that have a bearing on human rights in Africa- from the veritable International Bill of Human Rights to the recent Disability Convention- it can be admitted that that the African Group has contributed to the overall universalization of human rights norms and language. Nonetheless, it must be appreciated that such treaties although duly adopted would still require action at the state level, particularly where such states are monistic in orientation. The import of this is that African states often adopt and even ratify instruments but do not provide domestic imperatives to enliven these treaties. The limits of the actions of the African Group in terms of standard setting must therefore be considered from the less significant place of the GA within the larger institutional framework determinative of global policy.

With thirteen members out of forty seven at the new Human Rights Council, a subsidiary body of the GA responsible specifically for strengthening the promotion and protection of human rights around the globe, the African Group working with the Asian Group which has an equal number of representatives at the Council, has often stood in the way of more radical action against human rights violators particularly in developing countries. Hence, the Council, originally designed to place human rights at the centre of global policy in the context of UN reform, has failed to rise to meet this intended purpose. Even the Council’s flagship strategy, the Universal Periodic Review, a mechanism intended to systematically assess the human rights situations in all 192 UN Member States, has been significantly watered down due to the recalcitrance of the African Group and its coalition of the complicit, backed by China and sometimes, Russia.

But the worst form of malfiescence on the part of the African Group has been its brazen defence of autocratic regimes in the continent in deference to notions of territorial integrity and national sovereignty. For instance, the African Group has strenuously counselled against stronger sanctions towards Zimbabwe in spite of the latter’s flagrant abuse of human rights, including the worst forms of arbitrary arrests and intimidation targeting civil rights activists. In the same vein, the Group has stood up for the Khartoum regime to challenge the Security Council’s reference of the genocide in Darfur to the International Criminal Court. That over 300,000 people have been killed and millions displaced appears to have had no effect on the African Group’s determination to defend the continent’s hard won sovereignty. In 2006, the African Group also led those opposed to the adoption of the UN Declaration on the Rights of Indigenous Peoples on the grounds, inter alia, that the Declaration’s provision on consultation of indigenous people in development programs was an affront to the sovereign rights of states; a fallacy of superlative magnitude. It is also to the Human Rights Council that the UN Special Procedures, including Prof Alston’s Rapporteurship on Extra Judicial Executions, report. Consequently, the condemnation of Alston’s recommendation with regard to Kenya, and the ongoing lobby for the non-renewal of Alston’s mandate is consistent with the African Group’s disdain for strong international censure of the continent’s semi-authoritarian regimes.

In contrasts to its dismal record as defenders and promoters of human rights, it must be stated that the African Group has strongly advocated for the international appreciation of the economic plight of Africa. Starting in the 1960s in the context of decolonization and the new economic order led mainly by Eastern European countries, notably Tito’s former Yugoslavia, the African Group sought to reformat its relationship with its former colonial masters in the west. Specifically, the adoption of the Declaration on the Right to Permanent Sovereignty over Natural Resources in 1962, which has subsequently become part of customary international law, signalled the intention of Africa to thwart iniquitous appropriation of natural resources in Africa by western states’ multinational capital enterprises under the guise of economic investments. Specifically, the Declaration asserted the right of peoples “to freely dispose of their natural wealth and … (that a people be) not deprived of its means of subsistence,” a provision reiterated in Article 28 of the African Charter on Human and Peoples’ Rights. The recent forays of the Chinese capital in the extraction of the continent’s natural resources from timber to fossil fuels, however, reveals a duplicity in the continent’s approach towards natural resource exploitation More recently, the African Group has engaged with international trade issues with a view to ensuring that Africa’s interests are articulated and protected. For instance, in the context of the WTO, the Group has questioned TRIPS' requirement for mandatory patenting of some life forms and some natural processes. It did propose clarity that plants, animals and microorganisms should not be patentable. It also sought clarification that a “sui generis” system of plant varieties protection should include systems that protect the intellectual rights of indigenous and farming communities. These proposals represent important milestones for the protection of vulnerable farming communities in Africa that would otherwise be further marginalized by a more circumscribed international intellectual property regime.

Whether the African Group at the UN is indeed a friend of Africa is hence a question that must be assessed from the context of the foregoing outline of its performance. It is clear that rather than a champion for human rights, the African group appears more and more to be a champion for Africa’s development. This approach, however, is counter-productive since, it is often the case that sustainable development is a coefficient of respect for human rights.  The African Group’s posture, moreover, has succeeded in reviving the dichotomization of human rights into civil political rights that resonate with western states, and economic, social and cultural rights, that purportedly go well with countries burdened by poverty and want, especially Africa. This dichotomy however, fails to appreciate the universality of human rights, acknowledged since the Vienna Human Rights Conference in 1993. As such, the approach creates excuses for African dictators to run amock rather than encourage the entrenchment of a culture of accountability in governance.

No Longer Tragic: Nobel Prize and the Legitimating of Common Property in Africa

Much time has already been spent in justifying or dismissing president Obama’s selection for last year’s Nobel peace prize. In contrast, little attention has been paid to the other Nobel awardees, particularly Elinor Ostrom, the 73 year old woman professor of development economics at Indiana University, who together with Prof. Oliver E. Williamson, shared the 2009 Nobel prize in economics. I argue here that the choice of Ostrom for this important award is perhaps more significant for Africa’s poor than the recognition bestowed upon president Obama; our collective pride for the latter’s international respect notwithstanding.

Since the 1960s, the predominant policy prescription for ensuring sustainable exploitation of land resources in Africa has been the individualization of land held under custom. This move was largely driven by neoclassical economists led by Garrett Hardin who called his famous 1968 essay on shared resources, “The Tragedy of the Commons.” Hardin persuasively argued that a shared village grazing pasture would tend to get overused and eventually destroyed because more people utilized the common grazing ground without paying for the cost of maintaining it; a phenomenon known in economics as free riding. This view has inspired a variety of land reforms with a general trend toward market-oriented access to, and privatization of land through private entitlement. The premise was simple: individualized tenure offers the best certainty in land rights, which provides incentives for sustainable use and facilitates access to credit for investment in agriculture and natural resources, hence contributing to increased productivity and improved natural-resource stewardship. Evidence now suggests that this individualization of common property has neither yielded the economic and environmental returns envisaged nor improved living standards for those affected. For instance, according to Rutten, a Dutch scholar who undertook extensive research work in Kajiado, one of the three Maasai districts in Kenya where individualization of title was pursued through the establishment of group ranches with funding from the World Bank and Dfid, grazing land had reduced by well over 40% over the period 1982 and 1990 leading to increased vulnerability and destitution of pastoralists, not to mention, accelerated wanton environmental degradation.

By awarding Ostrom, the Nobel Committee has peradventure indicated that a paradigm shift has occurred and that in fact Hardin's famous Tragedy of the Commons theory should no longer be treated with reverential deference. Consequently, the developmental superstructure based on Hardin’s theory must yield to more cooperative property regimes. Ostrom’s research suggests that far from a tragedy, the commons can be managed from the bottom-up for a shared prosperity-given the right institutions. In her study Governing the Commons: The Evolution of Institutions for Collective Action (1990) based on numerous case examinations of user-managed fish stocks, pastures, woods, lakes, and groundwater basins, Ostrom observes that resource users frequently develop sophisticated mechanisms for decision-making and rule enforcement to handle conflicts of interest, and she characterizes the rules that promote successful outcomes. On this premise, she proceeded to propose eight “design principles” of stable local common pool resource management, most of which principles are not too dissimilar to those already in place in pastoral commons in the Sahelian regions of Africa. These Sahelian common property systems, now codified as Pastoral Codes for instance, allow for the survey, mapping and recording of “all forms of existing and practiced land rights, such as they are perceived and presented by the holders of these rights themselves.” Ostrom’s proposals suggest that while markets can organize production and consumption pretty efficiently, it can only do so when supported and nurtured by networks and communities. In Ostrom’s thesis therefore, private associations often, unaided through the instrumentality of state legislation, have managed to avoid the tragedy of the commons and develop efficient uses of resources.

The recent adoption by the African Union (AU) of Framework Guidelines on Land Policy in Africa under the guidance of the late Professor Hastings Okoth Ogendo and the ongoing attempts by UN-OCHA and AU to formulate a continental policy on pastoralism suggest increasing macro policy recognition of the importance of common property regimes. Similarly, current emphasis on participatory forest management point to the importance of local community cooperation as the singular logic in sustainable environmental resource use. This is in contrast to the individual-responsibility-models of the last three to four decades post-independence. Coming hot in the heels of these developments, Ostrom’s Nobel prize should serve to catalyse efforts aimed at the protection and promotion of indigenous systems of resource utilization in Africa.

Because the resilience of indigenous systems of land management have time and again proven that commons do not have to end in tragedy, Ostrom’s Nobel is well deserved. More importantly though, her Nobel is deserved because, the utilization of her economic theory will unlock the potential of common property regimes which, if better deployed, could serve to ensure a more people- centred face of national development in Africa. We hold that such a shift will protect vulnerable communities and individuals from unchecked market and environmental shocks that presently imperil their existence and threaten global food security.