By Demas Kiprono February 2016 marked eight years since former President Kibaki and Raila Odinga signed the National Dialogue and Reconciliation Agreement. The “National Accord” sought to provide a peaceful solution to the political impasse and violence that had engulfed the country following the disputed December 2007 General Election that saw over 1300 people killed, thousands injured, many raped and maimed, and over 500,000 forcefully displaced from their homes. Through the agreement, the parties agreed to immediately work towards stopping the violence in order to restore fundamental rights and liberties; address the humanitarian IDP crisis, promote reconciliation, healing and restoration; figure out how to overcome the prevailing political crisis; and find long term measures and solutions in terms of constitutional, institutional and legal reforms, land reforms, electoral reforms, poverty, inequality, unemployment, transparency, accountability and an end impunity. The above issues were earmarked as the reason Kenya, erstwhile an island of peace in a sea of conflict, had sunk to the brink of full blown civil war because of the habit of sweeping issues under the rug and with the hope that no one would notice. It thus follows that the accord proposed the creation of a Truth Justice and Reconciliation Commission to address historical injustices since independence; a Committee of Experts on Constitutional Review to pave a way for a new social contract; and Interim Independent Electoral and Boundaries Commission. The rationale was that we had to bring to the fore issues that have historically pitted Kenyans against each other and the state, change the entire national legal and institutional framework to inculcate and imbue human rights, equality, accountability, and transparency, and bring credibility to elections – the actual thing that triggered the massive violence that had never been witnessed before in Kenya. By 2013, Kenya had gone through a rigorous constitution making process and a referendum that promulgated a progressive Bill of Rights; devolution to deal with disparities in resource allocation; an independent electoral body; and a competent and Judiciary; including provisions on national values, accountability, leadership and integrity. During the same year, the Truth Justice and Reconciliation report was presented to President Kenyatta. As we commemorate 8 years since the National Accord, one would think Kenya has realised all institutional items that she set out to do in order to germinate a more perfect republic. But a closer look reveals precarious results with regard to nationhood, leadership, accountability and addressing historical injustices. In fact, the National Assembly has all but halted implementation of the TJRC because of the potential can of warms it can unleash. As it stands, the IEBC is headed by individuals who have been adversely mentioned as recipients of bribes in a UK criminal case where the alleged bribe givers have already been charged and convicted. At the same time, the Supreme Court is being rocked by allegations of bribery, while the executive and county governments appear to be suffering from compulsive looting characterised by a total bankruptcy of shame and decency. What is glaring is that no one has been held to account. In fact, just recently, the Chief Justice and the President separately alluded to the fact that Kenya has become “bandit economy”. Incidentally, the National Assembly has from 2013 been steadily vesting the Executive with powers that were intentionally domiciled elsewhere by the Constitution for obvious reasons. These changes touch on organs such as the NLC, JSC, EACC, NPC and NPSC with regard to public land management, appointment of the CJ and DCJ, the fight against corruption and policing, thereby compromising the equanimity and independence of the respective institutions. Disputed elections Which begs the question, what if the next general elections are seriously disputed? Which institutions will we look to impartially and professionally adjudicate the impasse? It is noteworthy that what led to the 2007-8 PEV was the overwhelming feeling that the now defunct Electoral Commission was compromised and the perception that the courts were already bought and paid for. As we approach the next elections, the people of Kenya have to reflect on the heavy price of letting persons or institutions that are perceived to be compromised carry out very sensitive functions at very sensitive times… functions that have historically proven to be deadly.
Writer is an Advocate of the High Court of Kenya and Senior Programmes Officer – Civic Space ARTICLE 19 Eastern Africa