Stalled negotiations over the naming of cabinet ministers by Prime Minister Designate Raila Odinga and President Mwai Kibaki under the power-sharing deal struck in late February of this year, has given rise to renewed fears the violences may return. A failure to implement the accord could have dire consequences for the country. Pressure is coming from the populace loud and clear for the two to settle the matter quickly, but Kibaki’s ministers said their party was ready for a reelection if the opposition wanted to go for a rerun, a sign the former are not interested in negotiating the cabinet. Sources tell me the military arrived in Molo already three days ago, another sign the state might not be willing to negotiate with opposition ODM’s demands. It also suggests word got out that the opposition is preparing its people on the ground for mass action. Protests in Nairobi’s Kibera slums and Kisumu town yesterday, and minor skirmishes with police were the first signs that Kenya might be heading towards a reprisal of the bloody clashes that erupted across the west after the contested election in December last year between Kibaki and Odinga saw the country divide along tribal lines.

The two leaders kept silent today, and most of the country was quiet apart from Kibera slums, where youths ripped up yet more railway line running from the coastal town of Mombasa to Uganda, an operation aimed at cutting trade routes and thus, further crippling the economy.

A definite beefed up security presence was felt all around Nairobi today, and tensions are running high. Kofi Annan, who was the chief mediator for the talks which led to the power sharing deal, sent a message to Kibaki and Odinga yesterday on his birthday which read “Give me a nice birthday present. Agree on a cabinet,” but made no mention of returning should a neutral party be required. Kenyan lawyers criticised the power-sharing deal, saying it had been poorly written and did not envisage a way to navigate a worst-case scenario such as the current stalemate. If either party pulls out of the coalition, the deal is null and void, which would most likely result in more bloodshed.

While over a hundred thousand internally displaced people continue to languish in camps across western Kenya and Uganda as a result of the clashes earlier this year, and food shortages loom ahead, many feel that now is not the time for political grandstanding and threats of more violence. The international community has put a great deal of pressure on the two parties to make the necessary concessions and move forward, but there is no sign of a compromise in sight.

Before Kofi Annan enters the history books with merits on a job well done in Kenya, before you buy into the propaganda of American goodwill in this story, it would be worth it to examine the quick turn of events that led to the February 28 power sharing agreement.

President Mwai Kibaki and opposition leader Raila Odinga publicly signed the deal one bright afternoon, to international acclaim. African heads of state got up before the cameras and talked about their “friends” in America and their “friends” in Europe. The mainstream media painted the US as an agent of peace, with Condoleeza Rice and Kofi Annan forging a deal to end two months of post-election violence, effectively bringing two sworn enemies together to rule one country.

But America’s foreign policy is habitually sugarcoated in the mainstream media. Reading between the lines usually gives a different, more accurate picture.

No one knew which way Kenya would turn last month. The country was on the brink of civil war, more than 350,000 people had fled their homes, and upwards of 1,500 had died. The opposition was threatening more civil disobedience, the state was refusing to budge in negotiations, and Kofi Annan was at his wit’s end. No one had ever witnessed such conflict in the history of Kenya since its independence.

Then came a thinly veiled threat from the United States on February 26 that suddenly made everyone stand up straight and behave. Chief Mediator Kofi Annan suspended the talks later that day, forced Kibaki and Odinga into a room alone to deal with the issues head on for the first time. He emerged miraculously 2 days later with an agreement ready to be inked by both parties. All means of speculation could never reveal what really was discussed in that room, but some pieces of the puzzle are in plain view.

Although Condoleezza Rice did not specify what she meant when she said that the US was “exploring a wide range of possible actions,” the effects were felt immediately. “We will draw our own conclusions about who is responsible for lack of progress and take necessary steps,” she continued. This was in no uncertain terms a threat, but was it hollow, or can we already hear the reverberations of its sincerity? Continue reading ‘US Foreign Policy and the Kenya Peace Deal’

A large mob of several hundred people poured into the streets of downtown Nairobi today in support of jailed mungiki leader Maina Njenga. Clashes with police ensued.

UPDATE: Several hundred Mungiki supporters descended upon Nairobi, calling into question security for the nation’s capital city. This incident came on the same day the BBC published its story about alleged police compliance with Mungiki members entering Nakuru. According to a Naukuru policemen, who spoke on condition of anonymity, he says he saw 12 minibuses full of armed Mungiki allowed by police to enter the city on the day the violence broke out in January. One has to wonder if a similar scenario allowed the huge crowd of gang members to descend on Nairobi. National Security Intelligence Service (NSIS) said they were caught off guard, but that’s hard to believe given the situation in Kenya. Although the violence has more or less subsided nationwide, security is still a major concern. All eyes are on parliament now as they put into place the power sharing deal. An MP I spoke with the day parliament reconvened told me that the pressure is intense because everyone knows that at any given moment, if the people are not happy with the progress, they can hit the streets and set the whole thing in motion again. How the security forces could allow several hundred Mungiki to tear through the streets of Nairobi in broad daylight is something of a mystery.

REPORT: One AC-130 bomber flew over the Somali-Kenyan border yesterday Sunday March 2, 2008, in an airstrike upon the Somali town of Dhoble, killing 6 and injuring 20 according to the latest reports. It is not yet clear where the plane came from. Reports of an aircraft carrier in the Indian Ocean are credible but it has not yet been determined whether this is the Eisenhower which appeared last year in January of 2007, when a similar bombing campaign occured in the same town. This territory is in theory protected by United Nations Common Law on the Sea and the US would need the go ahead from the UN Security Council, but, America tends to follow international law only when it’s convenient.

Reports of helicopters harassing boats along the Somali border are flowing in.

US troops inside Kenya along the border area in NE Province withdrew inexplicably on February 27, 2008.

Elsewehere, in the Rift Valley town of Trans Nzoia, 15 people are reported dead from what sounds like another round of clashes. 3 were shot, 6 hacked, and 6 burned in houses. I have no information at present to specify who is being targeted.

Supporters of ODM cheering outside Harambe house were dispersed with tear gas this afternoon as President Mwai Kibaki and Hon. Raila Odinga signed a power sharing deal. The deal struck creates a Prime Ministerial post for Mr. Odinga with the necessary constitutional amendments, and two Deputy Prime Minister positions, one for ODM and one for PNU. It also allows for the appointment of a 50/50 cabinet along party lines. It remains to be seen, however, how much executive power the Prime Minister shall be accorded, and chief mediator Kofi Annan was rather vague about the details surrounding this contentious issue. The deal comes at a moment in Kenya where everyone felt the nation was on the brink of disaster. Militia groups all around the country have been threatening more violence if an agreement was not arrived at. Alhough this is definitely a major breakthrough in the deadlocked talks and cause for celebration, we must wait and see how much of the agreement will actually be implemented in deed and if the grand coalition can tread water. At the very least this will help to cool tensions for now.

Internally displaced persons at a camp just outside Nairobi’s slum of Mathare © Anne Holmes

Chief mediator Kofi Annan announced today that he was suspending talks in order to deal directly with the two leaders. He insisted the talks had not collapsed, but clearly an impasse has been reached. This morning, he announced that he was quitting, perhaps a form of postering to get the PNU to return to the table. But by the end of the day he said he felt the negotiations with opposing party members over the past month had amounted to turning in circles, and he was suspending the talks with the principles and other party leaders in order to try to get Odinga and Kibaki to meet face to face to accept the gravity of the situation and make compromises for a power sharing agreement. This comes one day before the Wednesday deadline set by ODM that if a concrete agreement is not arrived at, they will ask their supporters to take to the streets in another round of mass action. Protests are likely in Kisumu city tomorrow.

Pockets of violence have been erupting around the country since the weekend, and three people were hacked by Luos wielding machetes early this afternoon in the Nairobi slum of Mathare North. They were rescued by MSF sometime around 2 p.m. and none died of their wounds though their injuries were serious. A number of car jackings were reported around Nairobi today as well.

The official numbers of deaths and displaced peoples have suddenly jumped in the press. Last week the number of deaths jumped from 800, where it had hoovered “officially” for weeks, to more than 1,000. Now police are saying that number is 1,500. The official number of displaced people jumped suddenly from 350,000 to 600,000 (AP). It is highly likely that these numbers are gross underestimations, particularly the deaths, as is typical in the history of violent eruptions in Kenya.

CORRECTION: That figure of 600,000 appears to have been a typo in a report which I cannot seem to find. My apologies.

CORRECTION 2: BBC is now citing the number of displaced at 600,000 in their latest article and so is The Guardian.

By Prof. Alberto Bencivenga
(http://www.ogiek.org)

Whoever reads Mr. S. N. Waruhiu’s book “From Autocracy to Democracy in Kenya” will be impressed by the amount of information and by the clarity of the analysis done by this author. Any reader who did not grow up in an Anglo-Saxon juridical culture will be additionally impressed by the fact that, in spite of the burden put on him by the bias of his Anglo-Saxon juridical education, the author was perfectly able to identify many of the sources of the present Kenyan problems, even if often without becoming aware of it.

The whole Anglo-Saxon constitutional history is characterised by the Executive trying to somehow keep the Judiciary under its control and people grown up within this system, usually fail in getting furious in front of some facts, which mightily irritate anyone who instead grew up within a Roman juridical culture.

The Attorney General, who is part of the Executive and a Cabinet member and who can enter a nolle prosequi, is a typical antidemocratic Anglo-Saxon invention, for the purpose of protecting from prosecution members of the ruling clique! The job of an attorney general is totally unknown and unheard of in countries following the Roman system of laws, because both the concepts of such an attorney general and of the possibility of entering a nolle prosequi ruling are unknown to the Roman code, even if nolle prosequi (don’t prosecute) is said in Latin.

Actually, one of the fundamental concepts of the Roman law is that there cannot be any discretionary power in prosecuting and the prosecution is a straight-forward, automatic and compulsory exercise that has to be started any time there is a notitia criminis (= news of a crime), even if this crime appears to be only possible and not at all sure. The Anglo-Saxon juridical culture justifies these two ideas - attorney general and nolle prosequi – because they consider the needs of the Executive to be prevalent in respect of the needs of Justice and they want to have the possibility of stopping a case that may embarrass the executive, while the Roman law considers the interest of theoretical Justice to be paramount and having priority in respect of the interests of the Executive. Continue reading ‘Constitutional Crisis in Kenya’