BY KIBE MUNGAI
On October 31, 2014 President Uhuru Kenyatta delivered an analytically profound speech on National Security Strategy during a high level seminar on National Security Strategy at Kenya School of Government, Nairobi. Barely had the ink dried on the President’s speech when a heavily armed Pokot militia ambushed a contingent of Kenya Police killing 22 officers and seriously injuring three others. Then as I started to write this article the Al-Shabaab terrorist group massacred 64 people (all non-Muslims) in Mandera. As it always happens in Kenya the various attacks during what is turning out to be a bloody November have elicited massive outrage, self-pity and self-righteous condemnations across the country.
Since the Jubilee government came into power in April, 2013 national security challenges have remained a permanent feature of national political discourse to an extent that one gets the impression that Kenya is the victim of low level terrorism by a host of local and international forces. Clearly, unless these security challenges are addressed urgently and effectively the Jubilee Government will not succeed in its ambitious transformational agenda for Kenya. This is precisely why I have chosen to write on this unusual subject for a lawyer.
In his remarkable speech, President Kenyatta observed that Kenya’s national security is facing serious threats “from our geography, demography, economic conditions, politicization of national security or to be more exact, lack of elite consensus on national security, the pursuits of power by global state and non-state actors; and the ineffectiveness or weakness in functions and capabilities of the State”. On account of space, in this article we intend to analyse two of the above threats namely the politicization of national security and low state capacity but first we need to place the national security challenge – albeit broadly – in its historical and philosophical context.
According to the Philosopher Harold Laski the State is “a territorial society divided into Government and subjects claiming, within its allotted physical area, a supremacy over all other institutions”. Thus sovereignty is a characteristic of the State, not of the Government, though it may be exercise by the Government on behalf of the State. Prof Laski adds that citizens have a political obligation to obey the State because the State is an organization to enable the mass of men to realize social good on the largest possible scale. However citizens may not always fulfill their obligation to obey the State and so the State is vested with exclusive monopoly of the instruments of violence within its territory. In The Substance of Politics, A. Appadorai rationalizes the necessity of coercive capacity of the State as follows:-
To enable the State to fulfill its purpose, it is endowed with force, with coercive power. But force is not the essence of the State but only its criterion. The Government, as the agency of the State, is vested with coercive power in order to compel obedience to its laws for the preservation of order and for the common good of the community. The purpose of force is to prevent individuals and associations of individuals from taking the law into their own hands and to insist on a peaceful settlement of their differences.
This background is necessary precisely because the threats facing our national security have simultaneously called into question the sovereignty of the Kenyan State over all its territories and the capacity of the State to assert the legitimacy of its constitutional order in the wake of attacks by ethnic militia and the Al Shabab menace. There are several happenings in recent years that underline the diminishing sovereignty and legitimacy of the Kenyan State. Here are a few examples.
Akiwumi Report, 1999
The Report of the Judicial Commission Appointed to Inquire into Tribal Clashes in Kenya chaired by the Hon. Mr. Justice A. M. Akiwumi made ten recommendations including the following three:
Land ownership and use in the various clash areas was given as one of the causes of conflict and tribal clashes. In view of that Government should embark on an ambitious programme to issue title documents to all people who were either allocated land there by Government or who bought the same from previous owners but have not got title, in order to minimize land disputes and conflicts in the areas. At the same time Government should respect and protect private rights over land.
To inspire confidence in the Government, all those who were displaced from their farms during the tribal clashes should be identified and be assisted to resettle back on their farms and appropriate security arrangements made for their peaceful stay thereon.
In view of the partisan role of the Provincial Administration officers in the clashes and having regard to the fact that they generally interfered with security operations during the clashes, we recommend that the Police force should be wholly delinked from the Provincial Administration and be made an independent unit headed by the Commissioner of Police. Likewise the Provincial Administration should be divorced wholly from the activities of all political parties.
It bears noting that the Daniel arap Moi regime had to be compelled by the High Court to release this Report and none of the ten recommendations were implemented.
Human Rights Watch
Report on Kenya, 2002
In May, 2002 Human Rights Watch released a report entitled Playing With Fire: Weapons Proliferation, Political Violence and Human rights in Kenya which observed that whereas Kenya was then often seen as a bastion of stability in a conflict ridden region, the series of brutal attacks in the Coast Province in 1997 had demonstrated the potentially explosive link between weapons availability and domestic violence. The Report went on to observe that the failure of the Kenyan government to provide security had led to widespread militarization of society as Kenyans were increasingly taking matters of insecurity into their own hands.
In October, 2008 the Commission of Inquiry into Post Election Violence (CIPEV) led by Court of Appeal Judge Philip Waki presented its Report to President Mwai Kibaki and the Panel of Eminent African Personalities. Among other things the Report noted that the scale and ferocity of the post-election violence was encouraged and aggravated by the cumulative failure of the State Security Agencies (SSAs) to proactively and effectively discharge their roles of protection of life and property, the prevention of offences and crimes and keeping the peace.
The Report further observed at page 376 -77:
There was also no evidence that recognized preparatory arrangements such as the use of desk top scenarios, simulated emergencies and full joint operational exercises are a part of the SSAs’ repertoire. These activities are a standard operating element of many similar jurisdictions, utilizing peer review strategies where security specialists from similar agencies act as reviewers and umpires to independently assess current strengths and weaknesses in the preparedness and capability of SSAs. Other issues that served to weaken the opportunity to reduce and/ameliorate the violence were the lack of a national security policy and security plan, the failure to recognize the importance of utilizing emergency management components (including a national plan), and full recognition of the role that the military can play in dealing with these events.
The fact that the CIPEV Report was handed over to Dr. Kofi Annan – the Chairman of the Panel of Eminent African Personalities – besides President Kibaki should worry Kenyans who put a premium on the sovereignty of the Kenyan State. However the Report did well to observe that whilst the Kenyan State faced collapse the military played a marginal role in the scheme of things. In view of this backdrop we turn back to the two issues identified earlier.
In a controversial essay he wrote in June, 1988 and published in United States: Essays 1952 – 1992, Gore Vidal described the USA as “The National Security State” that since 1947 has exaggerated security threats against America in order to build a military-industrial complex that in 1986 gobbled up to 90 per cent of gross revenue of the Federal Government. Together with the Israeli lobby which has to date ensured that Israel receives the lion share of American aid and weapons, the military-industrial complex has established permanent control over the State. Besides the US, in countries such as Egypt, Israel, Turkey and Pakistan the military holds substantial stakes in the matters of the State.
Viewed this way the fears eloquently expressed by John Githongo and Prof. Yash Pal Ghai that the Kenyan military is increasingly playing a vital role in State matters should not be dismissed offhand.
And so the question arises: Is Kenya truly facing the spectre of a National Security State?
The eagerness of President Kenyatta to adorn military regalia when attending public functions of the military coupled with regular deployment of the military to deal with internal security problems have raised concerns that the military is either being politicised or the government is mesmerising Kenyans with security issues. To lawyer George Kegoro the visible role of the military in civilian affairs risks giving the military a taste of new power that could easily breach the delicate balance of civilian control of the military under our Constitution.
On the other end of the spectrum, writing in the Sunday Nation of November 16, 2014, Prof Peter Kagwanja stated that “descriptions of Kenya as a military state is a myth that reveals the stereotyped sloganeering that now underpins civil society’s approach to discourse”.
Whatever the merits of the arguments of the protagonists, this discourse underscores President Kenyatta’s hope for elite consensus on national security. It seems to me that so long as the Kenyan elite are able to separate and distinguish matters of the State from matter of government, it should not be difficult for them to reach a viable consensus on national security. To my mind, the broad outlines of this consensus can be distilled into four elements.
First, the Kenyan elite need to acknowledge that the security challenges facing Kenya have a police and military components. The basic work of the police is to maintain law and order and enforce the law. However, where there is no law and order for the police to effectively enforce the law it is the job of the military to secure the territory. Thus in the lawless deserts, valleys and mountains of Northern Kenya and the Somali border the security problem belongs to the military rather than the police. Simply put, all the militia must be dismantled and exterminated before the police can safely move in to enforce the Kenyan laws.
Secondly, the problem of radicalization of Muslim youth should be confronted without the ambivalence being exhibited by Muslim political and religious leaders. The way I see it is that mainstream Muslim leaders and professionals must take responsibility about how they want non-Muslim Kenyans to perceive Islam. It is not responsible to cry wolf and play the victim card every time the security forces take decisive action against radicalized youths whose terror activities have shed the blood of so many innocent Kenyans. No one should have any illusion that across the world an armoury or criminal safe house are legitimate targets of security forces whether situated in a cave, valley, mosque, church or temple.
Thirdly, the Kenyan elite should stop playing petty or party politics when it comes to dealings between the Kenyan State and foreign States and non-State actors. For example, as long as the Kenyan military mission in Somalia is incomplete, it is myopic to quarrel amongst ourselves whether the mission is justified or not. Weak political resolve demoralizes the military and it projects weakness to Al Shabaab. Kenya stands to gain nothing from self-pity and self-imposed weakness.
Fourthly, the elites running Parliament and the Judiciary need to be more proactive in matters of national security. We need tighter laws to check and eliminate all political and ethnic militia. It is embarrassing that when you rob Sh100 the Courts cannot grant you bail but those who kill tens of innocent people in terror attacks are entitled to bail. To the judges, it is important to note that terrorism represents a negation of our constitutional order and so it is foolish to treat a terrorist suspect as the regular criminal offender.
It goes without saying that the civil society elite needs to adopt a more sophisticated approach to national security based on the distinction between acts of State and government.
of the state
Times without number President Kenyatta and Deputy President William Ruto have attributed the serious security problems facing Kenya to the historical under-investment in the security sector by previous governments. Consequently Kenya’s security agencies are under-established, inadequately trained and ill-equipped given the challenges facing them. In real terms this under-investment manifests itself in the following ways:-
The Kenyan military with about 25,000 active soldiers is too small for a country the size of Kenya given the security threats facing it. The same equally applies to the Police Force whose active personnel is around 50,000 officers.
The Kenyan police is poorly remunerated, inadequately trained and lacks specialisation which makes it susceptible to corruption and incompetence. As a case in point, most of the CID officers we often encounter in courts leave most of us with a dim view of the Police capacity to seriously investigate crimes.
The physical infrastructure – barracks and training bases of the Kenyan military – is largely the same as in 1963 and it basically covers the Central Highlands and Mombasa. The military infrastructure is too thin in Northern Kenya for the Security Agencies to effectively stamp out attacks by ethnic militias and terrorist organisations within and outside Kenya.
The poor road infrastructure in Northern Kenya and Coastal Counties have made these areas impregnable hide-outs of militia and organized criminals.
Cumulatively, all these factors undermine the capacity of the State to assert its sovereignty through effective control and order within its territories and also impugn its legitimacy as a protector of the people living in those areas.
From all perspectives the Kenyan State is weak including on the following ten bottom-line capabilities underscored in the President’s Speech:
A legitimate monopoly on the means of violence; effective administrative control; management of public finances; investment in human capital; delineation of citizenship rights and duties; provision of infrastructure; formation of the market; The capabilities also includes the management of the State’s assets (including the environment, natural resources, and cultural assets); international relations (including the environment, natural resources, and cultural assets); international relations (including entering into international contracts and public borrowing); and the means to enforce the rule of law.
Without a doubt national security in Kenya will not significantly improve until the capacity of the State is enhanced. This is easier said than done because in the foreseeable future under the new Constitution Kenya will have relatively weak and dysfunctional governments and our financial capacity is still woefully inadequate to ensure effective administrative control and constitutional order within our territory.
Bearing the foregoing in mind we cannot delude ourselves that the military will continuously remain in the barracks as it was in the 1980s and 1990s. The capacity of the military to pacify the country against political and ethnic militias’ threats and Al Shabaab attacks must be enhanced to permit the police to maintain law and order and enforce the law in our lawless and impunity-ridden half of the country. Thus an element of militarization of internal security is inevitable in the foreseeable future courtesy of our weak State institutions.
The challenge therefore is to ensure that within the shortest time possible we develop a strong and capable State that relies less on the military to secure peace within our territory. A capable state under the Constitution is our true safeguard against the spectre of the National Security State that may assume control of the State without necessarily seizing power. It is gratifying that President Kenyatta appreciates the challenge perfectly:
Our day job, expressed in the simplest way, is to build a strong state whose actions will be guided and contained by the spirit and letter of our democratic constitution. This strong state, in being able to effectively carry out the ten functions I have outlined, can bring to bear all elements of state and national power to bear against threats to our security, protect our sovereignty, and drive our development agenda.