Re-membering Kenya through law

Re-membering Kenya through law
Dr Charles Khamala Issa Shivji (2009) recalls how “European renaissance marked the beginning of the dis-membering of Africa; her body and soul were torn apart as her resources were raped and her beauty disfigured”. He laments how “Four centuries of slave trade dis-membered mother Africa into the continent and diaspora, as a century of colonialism dis-membered it into, what Mwalimu (Julius Nyerere) called, vi-nchi (statelets).” In Re-membering Africa (2009), perennial Nobel Prize in Literature nominee Ngũgĩ wa Thiong’o, captures an important intellectual moment in the long struggle of African people to re-claim and recover our collective memory. He argues first, “you cannot re-member Africa using the master’s language.” Second, “You cannot re-member Africa outside the vision of Pan-Africanism, the vision to re-member Africa across states, races, tribes, religion and cultures.” He challenges “a globalisation of inequality of power between languages.” Conversely, in 2016, Adolf Hitler’s memoir-cum-propaganda Mein Kampf (My Struggle) fell out of copyright. This permits reprinting of Nazi anti-Semitic ideology. Through that notorious literature, the Third Reich sought to “replace the Bible” with fascist hatred. Simultaneously, global anti-liberal reactionary rhetoric increasingly signals a turn towards political conservatism and economic protectionism. Social media not only facilitates knowledge acquisition or civic education but also, what losing US Presidential candidate Hillary Clinton calls, a “fake news epidemic.” Besides sweeping dangerous far-right supremacists into public office, populism also threatens ordinary people’s real lives with backlash by gullible believers of racist or fundamentalist views. Yet it was not Cuba’s Comandante Fidel Castro – the poor people’s defender who rejected cult personality – but neighbouring behemoth and billionaire, US President-elect, Donald J. Trump – who stole Time Magazine’s “person of the year” accolade. Eclipsing 20th century socialism, Trump’s glorification of national capitalism, by putting profits before immigrants, claims to provide an “Alternative Right” countering Plutocratic Capitalists. Given Africa’s robust ethnic heritage, our politics of resistance and struggle against deprivation, dispossession and exploitation inevitably draws upon the populist pressures that support one of our own kinsmen to superintend over public affairs, irrespective of national consequences. Unsurprisingly, therefore, during Kenya’s Seventh Mashujaa Day celebrations (celebrating heroes and heroines) last October 20, at Machakos’ Kenyatta Stadium – despite honouring many conservatives – President Uhuru Kenyatta conspicuously excluded certain revolutionaries. Yet, without the latter’s commitment to fundamental freedoms and human rights, the Second Liberation would be stillborn. Subsequently, 42 governors were touted for Head of State commendation on December 12 Jamhuri Day (connoting the Republic), for their dedicated and outstanding service to the nation. However, the list did not include Bomet Governor Isaac Ruto, Makueni’s Prof Kivutha Kibwana (who was included on the Mashujaa list), Kilifi’s Amason Kingi, Vihiga’s Moses Akaranga and Mandera’s Ali Roba. This essay observes that such selective recognition not only produces false national consciousness, but also simultaneously obliterates what a statesman makes. At stake in revisionist distortion is the systematic dishonouring of citizens who uphold national values. Disinformative statecraft strikes at the very character, ethos or soul of “who we are.” It is necessary to interrogate the modalities by which statecraft is produced and its impact on the society. The aim of this essay is not only to recognise that social regeneration of liberal democracies demands electoral processes in which loss by an incumbent is possible. Rather, it emphasises the contribution of the various branches of government, including the fourth estate, in sustaining civil peace. Ironically, it is victims of injustices who legitimately feel tempted to threaten to breach the peace, so as to satiate a primordial need to retaliate against offenders. To break the chicken-and-egg feud, states must both punish offenders for anti-social behaviour as well as compensate victims for pro-social conduct of exercising self-restraint. For such intervention, the adjudicatory event requires supplementation. One, legislative statutes may compensate for criminal wrongs, catastrophic injuries or even historical injustices – as intended by the enactment of Kenya’s Truth, Justice and Reconciliation Commission Act No. 6 of 2008. Continuously performing patriotic rituals of honouring “mashujaa” is an Executive function. However, where secondary agencies, particularly the Judiciary, fail to integrate warring factions, then the problem of social disintegration exacerbates. If the reality of class exploitation and ethnic exclusion exceeds a critical threshold, then the Legislature and Executive experience pressure to establish either the politics of memory through state honours, “truth commissions” or “ad hoc tribunals” to compensate by manufacturing “fake news.” Celebrations, elections and trials as rituals Legal anthropologists have adumbrated the roots of State criminal punishments as arising from the victim’s atavistic instinct for revenge, which, in simple societies, is usurped by religious rituals in order to extinguish counter-violence between victims and offenders. Similarly, in complex societies, the bourgeois, in order to make the procedure for allocating violence more efficient and thereby oust the illegitimate monarchs, invented the idea of “rule of law”.  Thus the modern State has stolen the property in criminal conflicts. Consequently, “Victims of crime have in particular lost their rights to participate”. To remedy these inherent limitations of liberal law, Nils Christie (1977) argues, “We have to organise social systems so that conflicts are both nurtured and made visible and also see to it that professionals do not monopolise the handling” of punishment, which he defines as “pain-delivery with a purpose” (1981).  Thus, the Judiciary is but the weakest link in the crime control industry. A potential victim serves as his or her own first line of defence against primary misconduct. The inherent shortcomings of “self-defence” gave rise to the “no man being a judge in his own cause” maxim. It follows that the state is a neutral third-party, which supplies three secondary lines of “other-defence.” Pioneer liberal philosopher Thomas Hobbes (1651) opined that the sovereign’s duty is to secure both the lives and property of citizens by extinguishing the “war of everyone against everyone.” Additionally, the Leviathan defends the territory against external invasion. Thus, embassies and foreign missions protect citizens living abroad. In systems that uphold “separation of powers,” the Executive is the first third-party who protects victims from threatened harm. In exchange for defensive coercion, subjects surrender their inherent right to self-defence. Through the Executive’s “trick” of reminding the victim population about collectively hard-fought struggles through which the State was established, social repression is made efficient. For, during earlier times of an independence war, whether to overthrow a monarch, liberate the territory from a colonising power or even acquire “second liberation,” able-bodied adults ignored their class and other differences. This is because during wartime, all lives are equally prone to suffering, pain and loss. Indelible patriotic memories are made of these. However, no sooner is freedom won than the liberal democratic ideals are betrayed. Ethnic discrimination and class divisions invariably emerge. It is to placate those who suffer brutal attacks as well as victims of life’s unjust moral lottery, that large gatherings and cultural rituals are performed during occasions such as Mashujaa Day, Jamhuri Day or even Madaraka Day (commemorating internal self-rule). These traditions are repeated by the Executive to pre-empt victims from resorting to self-help remedies through reminding them about yesteryear’s “sacred” moment when equality among today’s offenders and victims was indeed a sociological fact. Stirring nostalgia inspires all to believe that citizens are entitled to “equal rights.” This is how the Head of State functions as a symbol of national unity, effectively deceiving victims of capitalist exploitation to renounce their right to question unjustly earned wealth of the ruling classes or extinguish victim’s propensity to radically redress the irrational inequalities in the social arrangement. The second third-party agency, which provides a secondary line of “other-defence” to dissuade potential victims of criminal offences from seeking collective revenge for their disadvantaged social situation, is the democratically elected Legislature. Parliament is periodically constituted by the Independent Electoral and Boundaries Commission. By preparing a voter’s register, printing ballot papers and conducting a credible election “ritual,” it creates an illusion of hope to excluded groups that irrespective of their inferior social status, property-less class position, minority religious affiliation or marginalised ethnic region, “no condition is permanent.” The “one-man-one-vote” fiction supposedly generates equal representation for all constituents. During inter-election periods, parliamentary statutes, motions or resolutions undergo debate in the August House, which sanitises the majority’s desire to either reform existing property relations or retain the status quo. To consent with their own exploitation, the poor or excluded communities are told to record their names in an electoral register, entertain empty campaign rhetoric or dances and queue to cast their ballots. Thereafter, the masses are condemned to either consult their “freely” elected representative to rationalise the reasons for their persistent abject poverty; or they must wait until the next elections when they can chose to substitute him or her with another member of the self-same ruling class. Whichever ethnic coalition seizes power, they remain but artefacts captured by imperialist corporate capital. This is because a prohibitively expensive electioneering process effectively locks out any “poor-but-able” aspirant from successful party nomination, leave alone campaign mobility, electoral success or court access to lodge petition. Domination, adjudication and social Media Even assuming that each Kenyan of majority age were entitled to vote, and further assuming that the IEBC honestly counts the ballots, nonetheless, Karl Marx (1845) showed that notwithstanding a “free and fair” election, liberal universal suffrage still does not produce an equal impact on the lives of all social classes. Rather, the dominant class in a society remains that of the exploiter or oppressor. This is because all legislation is but an ideology that reflects the economic foundation of society. He states, “The ideas of the ruling class are in every epoch the ruling ideas… The class which has the means of material production at its disposal, has control at the same time over the means of mental production” To describe ideological domination, Antonio Gramsci (1971) coined the term “hegemony.” Nicholas Abercrombie, Stephen Hill and Bryan Turner (1982) understand the “dominant ideology thesis” to mean that, on one hand, the widely held view by Marxists is that “modern capitalist society maintains and reproduces itself through the effects of ‘dominant ideology’, which successfully incorporates the working class into the existing social system, thereby perpetuating its subordination.” According to this reality, because of the power of lobby groups and even insider interests to capture state officers, legislation invariably reflects the interests of the ruling classes. In theory, what Max Weber (1954) called “the ‘monopoly of legitimate violence’ is celebrated as a major achievement (if not synonymous with) the modern state.” Ultimately, Philippe Nonet and Philip Selznick (1978) explain, “…‘the state’ is an abstraction. In practice, specialised agencies are formed to maintain order and implement sovereign will. This specialisation has its own dynamic. Strengthened by the dependence of government on their skills and allegiance, often removed from direct civilian control, these agencies acquire the power and opportunity to further their own organisational interests.” More ominously, Kenya’s 11th Parliament remains captive to Jubilee’s “tyranny of numbers”. On the other hand, Abercrombie, Hill and Turner assert that “economism” provides “an alternative view that the crucial element in the subordination of one class to another is always to be found in the organisation of social production” i.e. what Marx called the “dull compulsion of economic relations.” To the extent that Kenya’s post-independence command economy imposed welfarist intervention to redistribute unequal resources created by colonialism. The aim was to create an African bourgeois class. To pessimists, however, welfare benefits were but “a silver lining with a cloud.” They also made an effective tool for totalitarian control. Clients elected kinsmen to serve as parliamentary patrons to misappropriate a piece of the national cake for their community, rather than legislate in the national interest. The third third-party state agency that implements the secondary rules, available to victims of criminal offences under a liberal democratic constitution, is the Judiciary. It does this by distinguishing whether a primary rule is a valid substantive rule, and evaluating evidence according to prescribed, and for that reason due, procedures. Yet, according to John Borneman (1997), even criminal trials conducted in good faith have their limits as instruments for uniting victims and their criminals. Some suspects either are too powerful to punish or it is politically unrealistic to do so without generating mass unrest. Instead, traditional societies resort to prosecuting substitute offenders, i.e. scapegoating. Alternatively, they may keep on changing the suspect who is charged, so as to sustain the impression that the judicial process is being pursued. For example, the Kenyan public mind can hardly fathom why different mind-boggling corruption cases sprout one after the other without making any headway or convicting elite suspects. At last year’s October State House Corruption Summit, the President expressly acknowledged his own frustration – heaping blame for the failure of Jubilee’s graft war on an ineffective Judiciary. In command societies where no autonomous legal system exists, people may resort to ethnic conflicts as befell Kenya in 2008. The second-order question then becomes whether any alternative approaches for extinguishing genocide or crimes against humanity are appropriate responses to the primary victims of earlier historical injustices that preceded the mass atrocities.  Conversely, the relevant societal interest in the International Criminal Court’s perspective relies on international community’s values using modern adversarial and inquisitorial legal procedures to ask immediate or first-order questions. The fourth third-party or estate which enables crime victims to perceive that the state shall defend their dignity, is the media. Perceptions matter. Thus the state makes an effort to construct statues, name roads or other infrastructure after significant national heroes so as to preserve the images of patriots for posterity. Not only does Jomo Kenyatta’s statue sit outside Kenyatta International Convention Centre but also the paraphernalia and apparatuses that bear his insignia are too numerous to mention. Kenyatta Day was re-named Mashujaa Day for inclusivity. Thus, together with pre-independence heroes like Field Marshall Dedan Kimathi, the Kibaki administration erected life-size statues in downtown Nairobi of Thomas J. Mboya. Curiously, President Uhuru lauded Kimathi for rising up “against the might of the British Empire,” but wants Kenyans to forget Mboya. Conversely, Paul Ngei’s contribution is recorded both by a most recent statue in Ukambani, as well as Mashujaa Day salutation. Decoration also befell Nairobi roads – christened Cardinal Maurice Otunga, former mayor Charles Rubia and Nobel Laureate Wangari Maathai – by County Governor Evans Kidero. President Uhuru selectively listed Rubia and other Second Liberation “restored the freedoms we had lost.” But others, including Raila Odinga, who “dared to re-imagine our democracy”, were ignored. However, the advent of social media has made it impossible to inculcate nationalism through propaganda alone. Nowadays, plenty of irritation emerges from contradictory leaky websites – through information activists such as Wikileaks or other whistle-bloggers – of corruption scams which demotivate victim’s constitutional faith. A “motivational crisis” is epitomised by the state’s establishment of numerous “ad hoc” commissions of inquiry, whether by the Executive or Legislature. Commissions and tribunals function to give the impression that the government is serious about superintending over the expressive flow of information within the territorial boundaries are secure to demonstrate that anarchy is unacceptable. But as Kenya’s post-independence experience illustrates, even before the advent of the Internet age, State failure to extinguish the “war of all against all” is preceded by brute force through “law and order” policing, torture and targeted killings. In an information age, false memory is also created. Killing prophets and detaining opponents In the wake of the Mashujaa slur, Orange Democratic Movement leaders gave the president 48 hours to apologise for his omission of the their major role in the first and second liberation of the country. Ugunja MP Opiyo Wandayi, who is also the ODM director of political affairs, said, “President Uhuru Kenyatta cannot be preaching national unity and cohesion on one hand while on the other hand he’s displaying open disdain towards our leaders.” Beyond merely deliberately humiliating some statesmen, it may be construed that the Jubilee regime actively intimidates or frustrates opponents who defend unpopulist causes. Popular pre-independence trade unionist-turned post-independence KANU Secretary General and Economics Minister, Mboya, a youthful Luo politician with Western capitalist links, was widely considered as Jomo Kenyatta’s potential successor. However, he was officiously assassinated in broad daylight along a Nairobi street in 1969, for which Nahashon Isaac Njenga Njoroge was hanged. One of Mboya’s key contributions was his 1959-61 “airlifts” which famously conferred thousands of Kenyans, including Barack Obama Senior, with educational opportunities. Ironically, the latter’s return to serve his motherland was curtailed on dismissal from the Central Bank of Kenya courtesy of Jomo’s orders. Uhuru’s Mashujaa list opened by honouring the country’s “prophets” for warning Kenyans of the dark days ahead of them at the turn of the 19th Century. In 1948, long before independence, and during Jomo’s incarceration at Lokitaung – the man who would become the doyen of opposition politics, Jaramogi Oginga Odinga was a Kenya African Union member. On election to Legco as Central Nyanza’s representative in 1957, he magnanimously declined the new country’s Prime Ministership and instead insisted that independence was predicated on Jomo’s release to assume the leadership mantle. It is further ironic that despite standing up for Jomo’s liberty, nonetheless for thereafter agitating for real “uhuru,” Kenya’s first Vice-President Jaramogi underwent the ignominy of arbitrary deprivation of his own. Until his death in 1994, he continued struggling for democratic ideals. Uhuru seems oblivious that Jaramogi “for this nation’s sake…set aside their differences… the squalor of jail.” He was notably deleted from the recent Mashujaa list. Selective recognition Pan-Africanist Mboya’s assassination was preceded by the 1965 gunning down of former colonial detainee Pio Gama Pinto, a socialist opposition leader of Goan extraction, by a handcart pusher outside his front gate at Ngara, Nairobi. The Mashujaa list recognised him among “those who fought with the pen and inspired freedom fighters.” The question arises as to whether their non-consideration or exclusion is attributable to their outspoken resistance against the culture of primitive accumulation. If so, then how can the Jubilee government hope to convince the public of its seriousness in fighting economic elitism and grand corruption without elevating these pioneer warriors who died for that cause into statesmen? Without glorifying ego cultism, clearly, there are many self-less others like Bildad Kaggia deserving of remembrance. Remembering heroes This essay has criticised selective and revisionist recognition of national heroes. In the absence of an effective sovereign, victims of injustices feel tempted to take the law into their own hands. On one hand, because conflict of interest obscures objectivity, no man should be a judge in his own cause. On the other hand, it is only after self defence fails that selfless actors or state agencies respond by rescuing victims. Assume that there are times in the life of the State when an executive may, by virtue of special knowledge, be entrusted to unilaterally suspend fundamental rights. It is nevertheless essential that in a liberal democracy, to facilitate a ritual of social regeneration, the circumstances in which such extraordinary measures were deemed necessary should be explained to the public as soon as possible. Alternatively, offenders who abuse power – whether economic, physical, public private or other – should swiftly be subjected to arbitration or formal adjudication processes. It is in this context that the recognition of national heroes needs to be underpinned by national values. We conclude that two kinds of threats call for heroism. In the first place, criminals threaten citizens. They establish a State to protect national security. On this theory, the heroes comprised all the president’s men, parliament and judges who jointly and separately provided the social conditions that facilitate equal citizenship to achieve civil peace. However, Kenya’s post-colonial legacy shows that our post-independence government became violent. George Orwell’s (1945) nightmare that “all animals are equal, but some are more equal than others” came to haunt Kenya. Hence in the second place, the Second Liberation was born of a distrust for public officials, whether the Executive, Legislature or Judiciary. “National hero” means a hero recognised at the national level. New legislation appreciates the need to rationalise procedures by which they are re-membered and honoured. The Kenya Heroes Act No. 5 of 2014 provides a legal framework for the recognition and honour of national heroes. The functions of the National Heroes “Council established under Section 4 shall be to (a) formulate and implement policy relating to national heroes; (b) identify and recommend national heroes; (c) establish and oversee the management of the national heroes’ square; (d) oversee the design and creation of appropriate commemorative items for purposes of honouring national heroes; and (e) administer State assistance to national heroes where necessary.” Under section 7, in the exercise of its functions, the Council shall have regard to Article 10 of the 2010 Constitution on national values and principles of governance. Criteria for identification, selection and declaration of heroes are set out under the Act’s first schedule. The NHC is required, under Section 23(1) to, “by notice in at least two newspapers of national circulation, publish the names of all persons proposed to be declared as national heroes.” Section 25(d) mandates it to “award…medals, insignia, commendations, certificates and such other commemorative” symbols.^

Writer is Senior Lecturer at Africa Nazarene University Law School and an Advocate of the High Court of Kenya 

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