The law is fine, the devil is in the State

The law is fine, the devil is in the State

By Kenyatta Otieno

I am a stranger to the study of political science because I came late to the party. I am not part of a new crop of consultants called “governance experts” either, so I am writing more out of curiosity than authority. I am going to discuss the state in relation to the current political crisis in Kenya based on what I understand as the government and what some of my online acquaintances call the State.

At the height of the drama of self-declared NASA General Miguna Miguna’s arrest and deportation, we had a discussion in one of the many social network forums of which I am part. Someone who works for government insisted that the government is not responsible for the illegality and that many people in government are not even aware of what is going on. According to him, that was vintage State that has monopoly of violence in operation.

This ignited my curiosity and soon I remembered an article I wrote in July 2017 asking if the “system” would give in to a Raila presidency. My eyes then caught posts on social media by several people I know who work(ed) for the government or the State. I realised that they were trying so hard to tell people what was happening without telling them what was really happening. I have found myself wondering, what is the role of this invisible state as defined by my friends in relation to the visible government we elected?

In my past articles, I have referred to the state as the “system“, which is the informal term for the state in the streets. There are four theories that explain the formation of the state. The Force Theory says that state was born out of force by an individual or a group of people who claimed control over an area, and forced everyone to submit to their control. Once the rule was established the four characteristics of a state – population, territory, sovereignty, and government – came into place.

According to the Social Contract Theory, originally one’s safety in a society depended on their physical strength and intelligence. The social contract came in form of a constitution where people agreed to surrender some of their freedoms and rights to ensure safety and well-being of everyone in the society. This theory has been pushed over time by Thomas Hobbes, John Locke and Jean-Jacques Rousseau. The other two theories are the evolution of state from a family through clans and the divine right theory for monarchs.

The difference between state and government is obvious but somehow people tend to confuse the two. State is abstract and assumed permanent while government is concrete and temporary. Territory belongs to the state and often we know it as an area represented in some map. Unless the border is marked by or constitutes a natural feature like a river, border communities cannot tell where one state stops and the other starts.

Sovereignty is another abstract concept of all power, which the state lends part of to the government to govern over a territory. Government is made of people we can see while state operatives are always isolated in barracks to keep them from the common people – raia. Membership of a state is compulsory or automatic while membership of a government is voluntary.

Now let us look at the reality of the two concepts. This discussion took me back to the recent resignation of Robert Mugabe as President of Zimbabwe. Mugabe was known as the tough talking anti-imperialist, yet he was only the figure head serving at the mercy of the army. The army here represents the state while Mugabe was the government. The army withdrew support, forced him to resign but allowed him a soft landing.

Then I remembered a story of the time after the assassination of former Foreign Affairs minister Robert Ouko. Vice President George Saitoti was poisoned and his doctors converted a room in his Karen home into a ward. When President Moi went to visit him, he asked him why he went eating “anyhow” yet he knows his enemy. Here are to men who are at the top of the government, talking about someone they seem to be powerless in handling. This anonymous fellow must have been deep inside the Kenyan state.

The story of the Kagame-led RPF/A’s invasion of Rwanda in 1994 is another example. Immediately after taking Kigali, Kagame the de facto president and a minority Tutsi, became Minister for Defence. He let some Hutus, who no one remembers today, to be president and vice president. He then set off to topple Mobutu Sese Seko in the former Zaire. Kagame did not have to worry that the majority Hutus he had toppled would come back and take over government. He was sure of the Rwanda Patriotic Army command of the state.

In Uganda, the army controls the state and the lines between the army, the state and government there are not even blurred; they are non-existent. President Yoweri Museveni has managed to stay in power because the army has allowed him. If the army withdraws support, the Museveni-led government will have no option but leave power.   

Who is the Kenyan State?

According to my online discussion, the face of Kenyan state is in two or rather three people: Chief of Defence Forces and Inspector-General of Police. The third person is the shadowy face in the person of the National Intelligence Service Director-General. These are the men behind the state’s biggest weapon – monopoly of violence. Mahatma Gandhi said the State is a soulless machine which can never be weaned of violence to which it owes its very existence. I unknowingly paraphrased this quote by posting on social media once, that the state has a spine but no heart.

One commentary faulted Justice Luka Kimaru for summoning the IG of Police and Director of DCI to court over the Miguna Miguna arrest. According to his post, people do not obey the law because laws have mystical powers but do so out of fear of the state. A court order is only as good as the man behind the gun to defend or enforce it. He advises that a court order against any head of the organs that constitute “the state” must be tempered with “reason and logic”.

The reason the men behind the gun look at court orders with contempt is because their old belief in “extra-judicial” means “as an option to the courts”. The Judiciary, on the other hand, does not have any other option in case the State declines or fails to facilitate the execution of its orders. The Legislature’s job is to come up with laws, often at the recommendation of the State, through the ruling party. They act on the premise that the Judiciary will interpret the law fairly, and the State will enforce it for the Executive without bias. In this matrix, it is the State that has a plan B, hence their contempt for the other arms of government.

I would not be wrong to infer that these are the people who head institutions that have loaned the government the power it executes. This is why every political leader (President) is called the head of state because he exercises the authority of appointing the heads of these institutions and, to some extent, keeps them on the job. These appointees in turn support his quest for consolidating power and, in rare occasions, can decide to throw him out. However, not every head of government is a head of state. That is why at international meetings you will hear reference of head of states and governments.

The state and democracy

When it comes to our elections and handing over of power, these are the people who call the shots from behind the scenes. The State is the only organ which can be everywhere in Kenya at the same time. It can execute an operation in far-flung Wajir and Migori at the same time. The opposition will need a lot of resources and personnel to be able to run a countrywide operation, which always gives the incumbent a head start. In 2002, Mwai Kibaki won because the State allowed him to.

Every time you hear that elections have been manipulated, fingers should point at the State and not IEBC. Handing over of power after elections is also subject to goodwill from the state. This is why the rumour that the military cannot salute Raila Odinga as head of state has gained currency in Kenya to justify why he is kept away from the centre of power. Raila has no goodwill within the state.

Now that we cannot dispense off the state from our country, what is the way out? The growth and development of a country is not down to a good constitution like the one we have, but the kind of people behind the gun. Democratic development is subject to who runs the State machinery.

Three days to August 8th 2017 elections, Nasa’s Canadian consultant Andreas Katsouris was deported for working in Kenya on a tourist visa. In an article he wrote from Canada, he said the head of Anti-Terrorism Police who went to pick him up told him to forgive them because Kenya is a young nation. There is a problem when the state believes Kenya is young yet our Asian peers are now growing old. The state will then stop anything they believe a “young” Kenya is not ready for.

There is always a collision between the interests of the state and those of the forces of democracy. Democracy advocates look at the world through a progressive lens but the state is ever preoccupied with self-preservation. On one hand is a group that believes the country can venture into unknown territory, upset a few people, survive but grow while the wielders of power have the first and only instinct of playing it safe.

The drafters of our Constitution gave us a very progressive document. I could not believe that a section of Kenya can secede without opting for violence. The process ultimately depends on a referendum which is in the control of instruments of state but that piece of law is very progressive. The wall of uncertainty will come when the State that eats and breathes territorial integrity and sovereignty comes face to face with proponents of secession.

These developments have made me believe that our social and political development is dependent on the kind of people we put behind the barrel of a gun. For a long time, the police and army have been a preserve of academic rejects. The trend is slowly changing but the bulk of it is made up of people devoid of creative and progressive thought which may serve the state but inhibit the growth of a nation. How far we develop socially and economically depends on how far the state allows us to. The law is innocent; if we must have reforms then let us look at the state.

Food for thought: Is there an external force behind the near perfect change of political power between Democrats and Republicans in the USA?  ^

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