Sunday, October 12, 2003
MAKAU MUTUA / Letter from New York
The case of judicial rot and reform politics
Upon taking office, Mr Kiraitu Murungi, the crusading Minister for Justice and Constitutional Affairs, promised that the Narc Government would perform radical, if painful, surgery on the judiciary. After the fall of Bernard Chunga from the high perch as Chief Justice and High Court judge Edward Oguk, you could take Mr Murungi�s promise to the bank. But then the anti-corruption campaign seemed to die in its tracks. Rather than roll, corrupt heads were held high.
Has Narc�s reform agenda tanked? First, yesteryear�s thieves and murderers have regrouped and reorganised. They speak of Narc�s anti-corruption campaign, the quest for a truth commission, and the reform of the country�s institutions as a witch-hunt against Kanu and its officials in the fallen regime. They play the victim and turn the concept on its head. No one in the former regime, from Daniel arap Moi, the former head of state, to the corrupt underlings of the Kanu regime can be investigated without Mr Mutula Kilonzo, Moi�s lawyer, crying murder.
Secondly, Narc suffers from a deadly, if not incurable, infection. It is a coalition of genuine democratic reformers, most of them from NAK, and former Kanu diehards, many of them from the breakaway Rainbow Alliance. Although the heart and soul of the LDP is the NDP, virtually all of its significant leaders, save for Raila Odinga, are bona fide Kanu refugees within Narc. These include Kalonzo Musyoka, George Saitoti, and Joseph Kamotho. Mr Moody Awori, the Vice President, was never a rabid Kanu stalwart, even though he, too, dialled Narc�s number from the Rainbow Alliance.
It is my argument that Narc, the coalition, is a diseased body that needs antibiotics. It is a Janus-faced creature, part monster and part human. Its monster, conservative face resides in its Kanu membership. Its human, progressive face is composed of the democratic reformers, many of them from NAK. The monster face of Narc has found some allies in NAK, and is fighting the reform of the Kenyan state. Kenyans will never understand the Sisyphean challenges confronting the Narc reform agenda unless they grasp this fundamental contradiction.
Sooner than later, Narc is going to either implode or forge a lasting identity. But what will be Narc�s genetic fingerprint? Is it going to be the corrupt, inept, business-as-usual culture of Kanu, or a reformist, democratic, and progressive ethos? For the moment, it seems as though these competing forces are stalemated, with a slight edge to the conservatives. President Kibaki must openly align himself with the reformers if they are to vanquish the conservatives. Otherwise, Kanu will be reborn as Narc, and President Kibaki�s legacy as the father of democracy in Kenya will remain a pipe dream.
Thirdly, reforms have run into heavy weather because of the troubled marriage between NAK and LDP. As the country knows, the standoff comes from Raila Odinga�s insistence that he is entitled to a share of executive power because of that infamous MoU. But NAK, like a Russian, has said �nyet�! Political analysts agree that whatever the merits or demerits of Odinga�s claims, President Kibaki will not relinquish executive power to a competing individual. But he is not opposed to devolving executive authority to, or sharing it with, Parliament.
In the event, Mr Odinga has become restless and reports indicate that he has gone forum shopping for allies, even within Kanu, to force NAK to accede to his demands. And he has NAK by the throat at Bomas where a majority of delegates appear to support him. But this brinkmanship will not work. Odinga, whose life has been a struggle against state despotism, and for which he has been horribly persecuted, should not repudiate his history now by getting into bed with Kanu to stop Narc�s reform agenda. Nor should he permit his quest for power to squander the transition to democracy.
I do however have some advice for Mr Odinga. He may have been betrayed by NAK but that, as they say, is water under the bridge. Great leaders rise at times of severe difficulty in the life of a nation. This is one such moment in the life of the Kenyan nation. The struggle for power within Narc could very easily plunge Kenya into chaos and bloodletting.
I do not think that we should bury our heads in the sand and not openly and honestly tackle the NAK-LDP spat. We can, but at our own risk. I say this because the success of the entire Narc reform agenda depends on a coherent, viable, and united ruling party, not a bickering tower of Babel. What Mr Odinga and others in this conflict must realise is that the country is larger than anyone of them. Kenya will outlive all of them. This realisation ought to humble and bring them together to work for the common good of all Kenyans.
Alternatively, Mr Odinga could sever LDP from Narc if he is so piqued that he cannot work with the President and NAK. This may save the country possible chaos and permit its transition to democracy to smoothly proceed. It may even be a blessing in disguise for Kenya�s experiment with democracy. Kenya would then have three large political parties - LDP, NAK, and Kanu - and one small party, Ford-People. History shows that successful democracies usually have several strong, coherent, and ideologically different political parties. That is one option I would seriously consider if I were Mr Odinga. I could leave Narc with my crew in tow.
But assuming that Narc remains one, I urge it to read the signs of the times. Kenyans are no longer afraid of the state, and will not be intimidated. Nor will the Kenyan press be returned to the evil Kanu days of the past when reporters were arrested, beaten, and persecuted for doing their job. That is why every Kenyan must, without equivocation, condemn the recent arrest and now prosecution of journalists from the East African Standard. Unbelievable. There is no room for such despotic tactics in a post-dictator state like Kenya. Divorce and disconnection of a state from the citizenry is the perfect recipe for dictatorship.
But Justice Ringera�s report should serve to remind Narc why Kenyans so overwhelmingly voted for it, and resoundingly rejected Kanu. Americans like to awaken their politicians with the phrase, "it�s the economy, stupid." I have a feeling that for Kenyans, "it�s reforms, stupid." Political power must be used for political purposes. Narc must learn to lead, and do so from the front. It must lead in the reform and the recreation of the state. No single mwananchi (citizen) is interested in whining politicians who squander millions of tax shillings and have nothing to show for it.
Justice Ringera�s report should serve as the catalyst for the war on corruption. No corrupt, immoral, or incompetent judge, magistrate, or judicial officer must be allowed to administer injustice from the halls of justice. President Kibaki and Minister Murungi must seize the Ringera report to jumpstart the war on graft and put the reform agenda back on track. Kenyans are looking up to them expectantly and with hope. They must not disappoint us.
Makau Mutua is Professor of Law at the State University of New York at Buffalo and Chair of the Kenya Human Rights Commission.
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