Heretical Thoughts on Kenyan Politics , Joel Ngugi; sent by Aseto Asiyo

From: Joel Ngugi < jngugi@u.washington.edu>

Sent: Wednesday, September 19, 2007 11:45:05 AM
Subject: Heretical Thoughts on Kenyan Politics

Warning: This is a long contribution I recently made to Bushfire (the Alliance Alumni discussion forum). We have talked about these issues before. To my surprise, it was well received -- so, perhaps, we are ready to move on in Kenya.

Here are my heretical thoughts on Kenyan politics -- written copiously as they flowed through my head as I thought about the season of politics in Kenya.

1. Raila should be elected Kenya 's next President. My reasoning is pragmatically clear-eyed rather than romantic or idealistic. In my view, at the next General Elections, Kenyans should make their decision on the basis of three key issues I discuss below. Without trashing the Kibaki regime, and even while, in context, applauding its (limited) successes, it is possible to come to a reasoned conclusion that Kenyans should seriously think about giving Raila a chance to be President.

a. To continue on, and accelerate the path of economic prosperity of the last 5 years. No doubt Kenya has prospered moderately under the Kibaki regime (I so advisedly recalling Victor Owuor's constant but surely correct admonitions that we must distinguish economic success that is the result of the regime's go vernance record, and that which has come in spite of the regime's nonfeasance and malfeasance) . Still, there are many economic governance decisions that have been made correctly, and they chiefly account for the economic growth. However, we can, and should do better. Some of the current regimes missteps in economic governance are legendary (Anglo-leasing; lack of strategic engagement with the international community on key issues important to Kenya's economic interests (e.g. tea trade with German where Vietnam recently overtook Kenya as the biggest supplier of tea); lack of adequate provision on key infrastructural needs such as main arterial roads.... The list is endless. Point is, compared to Moi, Kibaki's regime stands heads and shoulders above; but that is not enough. With another Kibaki presidency, we are unlikely to see much radical change in economic governance issues. However, with the key decisions - including institution building decisions - made under Kibaki, a new president stands a very likely chance of deepening the reforms; with, barring Idi Aminisque dictatorship (which is unlikely), little risk of defection. This is a case for a new president - with a pat on the back to the outgoing president for a job well (but not-excellently) done.

b. The opportunity to construct an autochthonous institutional mechanism for sharing national wealth - across regions and classes - that will supplement without supplanting the on-going economic prosperity. Granted that we must continue and deepen the economic policies that have bequeathed to us the Kibaki economic prosperity, we must also guard against the likely validly righteous but deeply disruptive; democratically populist but ominously anti-economic politics that might discourage continued investment by both local and international investors. To do this, we must simultaneously encourage the on-going economic growth while putting in place effective mechanisms for sharing the prosperity. Here, I think Raila's articulated social democratic ideology is useful. I do not mean to romanticize Raila by imagining that his political articulations will become policy on December 30th upon election. But I think political ideology matters. While Kibaki's mainly neo-classical economic thinking will take care of the front-end of things (economic development brought by an enabling environment that rewards private initiative and incentives) as it has done for the past five years; Raila's social democratic hues in his political ideology will take care of the back-end of things (social cooperation and cohesion brought about by redistribution and other mechanisms for managing social conflicts and reducing moral hazards).

c. The possibility and promise of national healing of the deep wounds of tribal suspicions and prejudice that have been re-opened recently . The Kibaki presidency has, wittingly or unwittingly, deepened the ethnic cleavage in Kenyan politics. We cannot bury our heads in the sand and pretend that we will become a nation by default. We must make political (and institutional) choices that will take us there. The next General Elections provides Kenyans with an opportunity to begin a post-tribal political discourse in Kenya . By post-tribal political discourse, I mean, not a politics where ethnic affiliation and tribal identity miraculously become extinct, but one where individuals can think across ethnic affiliations in a socially rational way that foregrounds the interests of the whole. Granted this may, at times, involve ethnic interests, but this should be but one of the factors that individuals take into consideration - others being class interests, regional (as opposed to strictly tribal) interests, national interests, moral values, etc. In such a dispensation, people make political decisions based on a complex matrix in which all these conflicting and competing interests are important but not necessarily decisive. The necessity of putting in place mechanisms for solving social and political conflicts in ways that imbue confidence to economic actors to invest in risky and long-term enterprises makes this task even more urgent. I suggest that a necessary first step to getting there is a Raila presidency. Because of Kenya 's unique tribal politics, President Raila will be a powerful symbol that we are in a new post-tribe era. This is not because I have purist thoughts of Raila as a saintly anti-tribal leader. Rather, it is because, if Raila is to be elected President, it will be (largely because of media representations) in spite of his tribe. This, in itself, would be a big first step.

Secondly, and controversially, I think a Luo presidency will put to rest the idea that some Kenyans cannot be President because of their tribal affiliation.

Thirdly, the notion that Luos have been mistreated in Kenya 's political history is real because it is deeply felt by many Luos in Nyanza. In my view, it would be difficult to move forward in building a unified nation unless and until we address this perception (which, as always, is the reality). A Raila presidency does that.

Fourthly, as a pragmatic matter, a Raila presidency is likely to re-align political and economic forces - hence making tribe less of a factor in politics and economic governance. This is because, first, despite his socialist and progressive ethos, Raila is deeply capitalistic; a hard-core entrepreneur. He is therefore unlikely to destroy the economic base but is likely to forge class-based alliances across the political divide. Second, short of assuming draconian dictatorial powers, President Raila will not easily afford to be complacent: he will be facing well-heeled political opponents. Yet, these would be opponents who have a solid economic base and would not crumble easily due to the use of moderate state power against them. Lastly, President Raila will direct some much needed infrastructural finances towards Western Kenya and Nyanza. As Fred Ollows correctly pointed the other day, the Lake Basin is the least developed part of Kenya in terms of its potential. Imagine the increased prosperity of Kenya when that potential (including a savvy renegotiation of the Nile River Treaty) is unleashed.

2. Kenya should find a way to deal with corruption on a firm going-forward basis. For me, controversially, t his means making a pragmatic decision to absolve past corruption from criminal persecution. In my view, the attempt to investigate past corruption for in our complex political situation merely encourages political strife and perpetuation of existing networks of patronage. Imagine Deputy Prime Minister Ruto defending the decision by President Raila to go against MP Murungaru in 2008 or, assuming Raila's presidency in 2007, President Uhuru going against Minister Henry Kosgey in 2013 for economic crimes committed before 2002. I think a time has come for us as Kenyans to consider facing the trauma of corruption realistically. We will realize that as bad as the trauma was; we risk re-living it and compounding it if we don't start preventive therapy to avoid it's continued effects. We cannot do so if we create an incentive for those manning the institutions charged to fight it to sabotage to the task because their interests are obliquely implicated. Rather than remain obsessed about past corruption, we should be obsessed about designing institutions - both formal and informal - that make it extremely costly for future corruption to occur.

Fundamentally, I agree that there is an urgent need to address the structures of corruption both within (and especially) outside the country. It is in the how where we may differ. After looking at the situation in Kenya , it seems to me that we stand a more realistic chance to address both structures if we drew a line in the sand on a forward-going basis. Here are my reasons.

First, with the developments in international law (including the Convention against corruption and the various OECD Guidelines) it would be much easier and attainable from a political stand point for a new government to approach past enablers of corruption ( Canada, Switzerland, etc) asking for their prospective assistance to ensure no future corrupt funds are deposited in their stream of commerce. From a pragmatic point of view, such a stance does not instigate the culpability of these countries for past corruption and is therefore more likely to succeed. In my view, this was one of Kibaki's worst failures: missing the chance to draw the line in the sand, and with the aid of righteous past enablers of that corruption put an end to present and future corruption. Without trying to wake up sleeping dogs, I would suggest that this was the strategy in the independence struggle. I do not claim that it went stupendously well -- but at least we got independence.

Second, to a large extent, only two ways have proven effective in world history in dealing with past atrocities: Truth and Reconciliation or "illiberal" sanctioning. By "illiberal" sanctioning (a term used by Ruti Treitel in her book on Transitional Justice), I mean tactics which, in context, do not conform to the newly-established "rule of law" as a way of dealing with the past. This is often necessary because it is realized that the just overturned regime retains an ability to subvert the new democratic system.

The repertoire for transitional justice basically contains three "illiberal" tactics:

One, a very activist judiciary that is imbued with a strong sense of human rights ethos.

Two, a "militant democracy" – the attempt to guard from within against subversion of the new democratic system by its old or new enemies including the use of "authoritarian" means -- for example in the suppression of a genocidal, anti-democratic party such as the Nazi Party shortly after WW2.

Three, the process of "lustration" (Treitel's term) – the administrative practice of investigating, publicizing, humiliating, and purging from public employment those individuals with ties to the former regime -- as used in Czechoslovakia and Germany.

None of these "illiberal" tactics would seem ideal for Kenya . Our judiciary is not primed for the task (there is pervasive lack of trust in our judicial institutions, and there is little promise that the judiciary will pursue pragmatic transitional jurisprudence e.g. on corruption cases) while, because of the incomplete transition (no matter who gets into power -- whether Kibaki or Raila) these two more "militant" tactics would likely lead to civil strife or the postponement of the moment of reckoning (as happened with Kibaki). The more we defer the definitive decision on the matter, the harder it would be to get a complete transition.

It seems therefore that the better course of action would be to presently put in place institutions which will unwittingly turn the robber baron into the vanguard against corruption.

Don't get me wrong: even as I write this with my pragmatic right hand, my deontological left hand is wincing in sheer disgust at the prospect of some of these fellows getting off the hook. But sometimes it is virtuous to "cut and walk."

Joel M. Ngugi

Assistant Professor of Law

University of Washington School of Law

William H. Gates Hall, Rm 315

Box 353020

Seattle, WA 98195-3020

Tel: (206) 543-7611

Fax: (206) 543-5671

http://www.law.washington.edu/Directory/Profile.aspx?ID=149

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