BY IAN RAMAS
In his military treatise Art of War Sun Tzu talked about armed conflicts driven by variables and distinct combatants. Sadly the war that Kenya is battling isn’t, or is no longer, an art – to paraphrase writer J.R Mack in his oft-quoted article, Why Big Nations Lose Small Wars.
Mack’s piece, written in 1975, long before the word terrorism confused our minds, strives to explain how some wars rebel logic. He draws examples from the Algerian and Vietnamese civil conflicts to explain what officialese describes as asymmetric (distorted) warfare – insurgency, terrorism, guerrilla warfare; all wrapped up into unconventional warfare. This is a conflict absent of sensibleness and lacking distinct characters and strategies.
It is the war that has hit Kenya. The Jubilee government appears bamboozled by an adversary fluid and unclear as the wind. The enemy’s tool of trade is the AK 47 rifle and the machete. Al Shabaab has slaughtered 60 Kenyans in the past month. It has hit the country hundreds of times in the past three years. Implicitly, Africa’s fourth largest economy, equipped with the region’s most modern military arsenal, is crumpling to an amorphous combatant.
A big nation is losing a small war.
The State, in response, and to cover up for its inadequacies against Al Shabaab ragtag firepower, has scrambled an extreme law regime that, according to experts in matters democracy and human rights, is a risk to the same people it seeks to protect from terror. Thus the State has inadvertently or by design, opened up two fronts in its war against terrorism: Attack the terrorists even as you suppress freedoms of victims.
Guns target the Al Shabaab while the new laws are aimed at Kenyans, to cow them from demanding accountability — or exercising their rights. The villain and the victim are both in the crossfire of the State. It’s a zero-sum war, launched by a system that appears intolerant to any counsel from outside its own ranks.
Security expert Trevor Ngulia calls the government’s new legal measures “ill-conceived and knee-jerk” while political analyst David Ndii, writing in the Saturday Nation, describes the architects of the new law as “lacking in imagination and failed by their own courage”.
Off the Mark
Indeed, opposition to the legal measures President Uhuru Kenyatta speedily assented to has been swift. MPs turned their workstation into a house of shame when the two sides (government and Opposition) traded punches during the parliamentary debate on the draft law. The media, democracy and human rights experts, the Opposition and a section of the Jubilee demanded a sober debate but a cantankerous assembly of Jubilee diehards was hardly in the mood to invite reason.
Yet there’s general agreement that the new laws are off the mark, crafted to serve certain interests that are beyond fighting terror. “They don’t address the real problem, which is the systemic breakdown of the police, eroded by corruption”, according to constitutional law expert Bobby Mkangi. Indeed, analysts are convinced the breakdown in security apparatus – in terms of information gathering, coordination and Intelligence sharing – is at centre of Kenya’s vulnerability to Al Shabaab attacks.
It is not that the country lacks requisite laws against terror.
“The biggest challenge of security in Kenya is not legal powers or organizational capacity but rather the security services’ legitimacy deficit,” says analyst Ndii. Thus, “the purpose of the mobilization (to pass the new law) was political showmanship, not security. We have not seen such capability and zeal deployed in Lamu or Mandera.”
Westgate wasn’t hit because Kenya lacked requisite laws against such raids. The attack happened because of the rampant muddle in the operations of security agencies: The National intelligence Service (NIS) had forewarned about the impending raid 12 months earlier. In fact, the Intelligence had even sensationally predicted the venue, mode and specific date of attack – and the plotters!
Cattle-rustling is hardly new in Kenya. Yet it is imprudent to believe that the absence of laws led the Police command to unleash fresh recruits to conflict zones in Kapedo and Baragoi.
We are witnessing a situation where the State has exhibited clumsiness, impunity and utmost deficiency, in gathering Intelligence, coordinating response and sharing of vital information amongst concerned agencies. This explains authorities’ botched attempt to run down terrorists in the besieged Westgate Mall. Again, it wasn’t because of inadequacy in legislation that Kenyans were mauled by four killers who may have escaped despite the presence of hundreds of soldiers buffered by military tanks. No, it was an operation absent in synergy — security agencies were working at cross-purposes.
(Even with many anti-theft laws, soldiers pilfered the Mall’s wreckage)
The State has slept on the job and now seeks to punish its own citizens. “It is sad to note that some of the attacks have followed each other in quick succession, raising concerns over the capacity of the state security to respond on time,” says a joint statement by Mainstream Christian Churches Forum that draws Catholic, Anglican, PCEA, AIC and Methodist churches.
“Kenya police still has the dubious distinction of being the most corrupt institution in the country. This has rendered (it) incapable of solving communal problems” says Ngulia.
A government in hurry to craft new laws as solution to every ill facing the country is one likely to whimsically invoke state emergencies. This can be very dangerous to civil liberties.
“The real target of this “law” is not terrorism. Its aim is to reintroduce the police state and political hegemony for the enjoyment of the remnants of Kanu who are keen to reintroduce what Kenyans fought so hard to defeat,” says CORD leader Kalonzo Musyoka.
“Do the amendments address the causes of terrorism and insecurity, which is corruption and unreformed security sector? Alas, no. They instead increase the possibility of repression and pain to citizens already in fear of the terror,” human rights and governance expert Maina Kiai wrote in the Saturday Nation.
Catholic priest Gabriel Dola is raspy, thus “already whole sections of the population, who hitherto had been fence-sitters, are now voicing their opposition”.
As noted above, Kenya’s problem is a failure of systems and institutions. It is not deficiency in the legal regime. True, laws are significant for order and discipline. However, laws and civil liberties are indirectly proportional, so to speak. Open societies have relatively fewer laws.
If the new laws are meant to arrest terror, why are authorities silent on the epochal “nyumba kumi” initiative? Why hasn’t the state empowered county security structures? Why is the State silent on the inadequacies and structural deficiencies of the security agencies in meeting their requisite mandates? Why aren’t the architects of the new laws talking about corruption within the security sector?
The Jubilee government has been deficient in drawing answers from, and experiences by, other jurisdictions that face similar predicament, including the United States.
Following the September 11, 2001 attack, America moved fast to reconstruct its homeland security; what we here call internal security. It came up with a “new Intelligence architecture” that emphasized gathering, analyzing, and disseminating national security information, as well as fostering collaboration among security agencies.
Of course, the “new Intelligence architecture” put premium on personal privacy and openness of the American people. This explains why the infamous Guantamo Bay was located in Cuba, symbolically outside American soil.
The role of Intelligence and espionage in warfare is critical. However, Kenya is almost the only country that has a very rudimentary Intelligence system. According to a security expert interviewed by this publication three months ago, Kenya’s Natioal Intelligence Service (NIS) has no power to act or undertake an operation in the world. The Service plays only an advisory role, commonly referred to as the national intelligence estimates. Its peers, such as the CIA, FBI, Mossad, KGB, among others enjoy this clout.
Hardly all; Kenya relies on one source of intelligence. Other nations have embraced pluralism in intelligence. Britain has M15 and M16 while Israel has four intelligence gathering units: Shin Bet, Mossad, Military intelligence (Aman) and the ministry of foreign affairs research. Perhaps this explains why before the Westgate Mall attack, Israel had already known.
Kenya must build a new Intelligence system able to counter terrorism. As lawyer Kamatho Waiganjo aptly put in a recent media article, “there is need to rethink the command and control structure of the various security services to ensure that they work coherently and are able to share and utilize critical intelligence for effective service delivery … we need to see a more elaborate security policy that enhances public involvement in security, professionalises our security services and cures their excessive deficiencies”.
Jubilee Coalition leaders should have endeavored to read The Art of War before passing the punitive laws. Sun Tzu talked about Moral Law as a key element in warfare. This factor “causes the people to be in complete accord with their ruler, so that they will follow him regardless of their lives, undismayed by any danger”. Unfortunately, almost all Kenyans don’t support laws that limit their freedoms.
Kenya is losing a small war because its leaders are searching for a black cat in a dark room. “The draconian powers they now seek are the last kicks of a dying horse, the nakedness of leaders who, lacking in imagination and failed by their courage, want to return people to Egypt. We are not going back to Egypt,” says political analyst David Ndii .