Getting Off

Kenyans like to get off. Repeatedly. Impunity is a habit, a practice, a fetish, and, seemingly, a requirement for national belonging. In fact, it lies at the heart of how we engage in civil and political life, and is one of our greatest impediments to realizing a truly progressive, liberated State. The aftermath of the post-election violence offers a particularly vivid case study on the important role of impunity in present-day Kenya.

On September 17, 2008, members of the Independent Review Commission, led by Judge Johann Kriegler, submitted the Report of the Independent Review Commission on the General Elections Held in Kenya on December 27, 2007 (the Kriegler Report), to President Mwai Kibaki. President Kibaki had appointed the Commission to “inquire into all the aspects of the general election . . . with particular emphasis on the Presidential Election.”

Kriegler and his team compiled a leveling, devastating report with at least three conclusions worth noting. First, in response to claims that the presidential results had been rigged, the Commission concluded that the debate over which candidate won was “irrelevant” because “the process was undetectably perverted at the polling stage” and “the recorded and reported results” were “so inaccurate as to render any reasonably accurate, reliable and convincing conclusion impossible.”

Far from laying blame solely at the feet of the Electoral Commission of Kenya, the Commission also implicated Kenyan society, writing, “Kenyan society has long condoned, if not actually connived at, perversion of the electoral process.”

They concluded, “This culture of electoral lawlessness has developed over many years and cannot be reversed without a concerted, non-partisan commitment to electoral integrity on the part of political leaders, which commitment will need to be sustained and monitored over time.”

Perhaps predictably, the Report’s conclusions became objects of partisan struggle. Whereas Kriegler and his team had implicated Kenya’s entire political structure, from politicians to voters to election officials, members of the key opposing parties, ODM and PNU, pointed fingers at each other, refusing to admit their culpability. On September 23, 2008, an article in the Daily Nation informed us, “President Kibaki’s Party of National Unity and Prime Minister Raila Odinga’s Orange Democratic Movement on Tuesday discounted the Kriegler Commission verdict that it would be difficult to tell who won the election.”

The Waki Effect

On October 15, 2008, the Committee of Inquiry into the Post-Election Violence (CIPEV), headed by Justice Phillip Waki, released its much-anticipated report. The so-called Waki Report was composed and written under trying circumstances, impeded by reluctant and inefficient State machinery. The Commissioners faced logistical problems, from finding appropriate office space to getting access to witnesses, many of whom were still traumatized by the violence and worried because Kenya has no witness protection programs. Most damning to the government, the Commission was not afforded enough time to fulfill its mandate, despite repeated requests to the government that its tenure be extended. In the subsequent critiques of the report, and there are many, these institutional and structural impediments are never mentioned. As a result, such critiques, especially from the government, must be seen as evidence of bad faith.

Drawing on previous government-commissioned reports, including the Akiwumi Report (1999) and the Ndung’u Report (2004) as well as reports from Civil Society groups and academic studies, the Waki Report complemented the Kriegler Report. Like the Kriegler Report, it implicated Kenya’s entire political structure in the post-election violence. It argued, “violence has become a way of life in Kenya,” “not just [in] elections but in everyday life,” concluding “impunity has become the order of the day in Kenya.”

The theme of impunity runs through the Waki Report, a recurring bass line that anchors all the other political melodies.

Yet, the very important idea that Kenya has a problem with impunity was overshadowed by the Commission’s declaration that it had placed the names of “alleged perpetrators” of violence in a “sealed envelope,” and if the Kenyan legislative and judicial structures failed to act, the “sealed envelope” would be forwarded to the Hague special investigator for further action.

While, like the Kriegler Report, the Waki Report indicted an entire political system, the focus has been on the contents of the sealed envelope. We might all be implicated in impunity, but, in a moment of strategic evasion of responsibility, Kenyans have decided that those named in the envelope suffer more from impunity. They are “the real” perpetrators.

Thus, the Waki Report, as interpreted by politicians and Kenyan citizens, undercuts both the Kriegler Report and its own conclusions by allowing us to point fingers at secret names in a sealed envelope.

Impunity continues to dominate our political processes and everyday lives.

Sealed Envelopes and Open Secrets

Kenyan impunity has a peculiar structure. Through networks developed under, and because of, repressive regimes, Kenyans know about government misconduct, not simply after it’s reported, but as it’s going on. We know, for instance, that the money we have given to various school-improvement funds over the years has not been used to buy computers or new instruments or new sports equipment, because we have yet to see any of these materialize. Just as we know that a lot of the money we gave during public fundraisings never built roads, schools, or hospitals. Theft is an open secret.

Yet, this knowledge rarely, if ever, translates into action. Or, if it does, the action is stunted from the beginning.

In “Postponing the Truth: How Commissions of Inquiry are Used to Circumvent Justice in Kenya,” the African Centre for Open Governance (Africog) details the perverse alliance between sealed envelopes and open secrets.

As the report points out, Commissions of Inquiry have been a favorite government tool, with at least 31 being established over the past 100 years. However, the peculiar structure of how Commissions function impedes their potential effectiveness. As the Africog report notes, “The Commissions of Inquiry Act has no rules on when a report should be released and so it is left to the president’s discretion.” To compound this temporal problem, “The law does not require a commission of inquiry or the president to publish the findings of the inquiry. Neither does it require the president or any other organ of state to implement the findings or recommendations of a commission of inquiry.”

Consequently, commissioned reports have become part of a new Kenyan genre: the dusty shelf chronicles. More insidiously, and here I stretch the metaphor, they have become sealed envelopes, documenting evidence that causes a few flutters of panic, but is subsequently de-fanged through government action.

For instance, newspaper reports indicate that the hastily formed tribunal, set up to investigate and, having found sufficient evidence, try those implicated in the infamous Waki envelope, may have been constituted as an already de-fanged institution, unable to investigate or prosecute with any measure of effectiveness. If this is the case, the tribunal will be like the Commissions of Inquiry: a de-fanged institution, and the threat of the sealed envelope will remain nothing more than a threat.

The un-sealed envelope, when it is unsealed, might become another open secret that joins the many reports in the dusty shelf chronicles.

Impunity and the Absence of Witness

The absurd structure of impunity in Kenya is such that, even when captured in the act of administering extra-judicial killings or unwarranted cruel and unusual punishment, those who administer justice play Shaggy: “it wasn’t me.” One of the most extreme examples came during the post-election violence, when a young man in a black t-shirt was executed by a policeman. The police administration subsequently claimed that the event might have been staged, and was perhaps a scene from an upcoming movie. So absurd is the structure of impunity that we are not even allowed to believe the evidence we witness.

We cannot even be witnesses to crimes we observe. The very necessary ethical, moral, and civic role of witness is denied to us.

Let’s pause to consider this.

Witnessing lies at the heart of our modern systems of governance and redress. Testimonies from Nazi Germany, apartheid-era South Africa, genocide-era Bosnia and Rwanda, Katrina-flooded New Orleans, and, more recently from Darfur and Gaza continue to affect how we engage the world as ethical citizens. For, in those moments when we turn away in silence, when we shrug and claim that it’s someone else’s struggle, when we blame bad governance or racial, ethnic, and religious structures, in those moments when we abrogate our responsibilities to care for our fellow humans, we lose a little more of our already threatened and fragile humanity. We need the witness, we need witnessing, and we need to be present for testimony to configure ourselves as ethical and moral citizens of the world.

In a culture of impunity there can be no witnessing. There can be no testimony. There can be no possible ethical and moral stance. And we have seen this and continue to see it.

During the post-election violence, many of our leaders closed their eyes, refused to see the pictures of burned and dead bodies, the broken families and destroyed lives. In the aftermath of the violence, many of our leaders have continued to refuse to see those who still lack homes, whose families are struggling to stay together, whose broken bodies tell a sad story of Kenya’s failures.

Ironically, the ostensibly moral calls that we should “forgive and forget” are precisely amoral and unethical because they deny the ethical obligation we have as citizens to listen to witnesses and to act on testimony.

We have lost testimony and the ethics it engenders.

What then? Imagining Otherwise

How do we uproot impunity? And, what would an impunity-free Kenya look like?

I don’t know.

I write I don’t know not to register pessimism about the future, nor to renounce and defer my duty as a citizen to envision a fairer future. Instead, I write I don’t know to acknowledge how difficult it is to re-think and re-fashion, to actually change an entire pleasure-driven and pleasure-giving culture.

Facing and uprooting impunity will require more than de-fanged Commissions of Inquiry and the repeated promises to “end corruption” that form the substance of election-time promises. It will require a massive, collective act of imagining an altogether different culture, a slow process of learning how to build and nurture that culture. It will be a slow process, one akin to raising the most fragile orchid in a technologically bereft greenhouse. It will be a process during which the deep-tangled roots of impunity will emerge over and over, when least expected, ready to drain nutrients from a fragile new institution.

Facing and uprooting impunity is a work of collective dreaming and action that must be embraced by all of us, for we are all part of impunity’s intricate root system, and whether we acknowledge it or not, we are all fertile ground for impunity’s multiple pleasure-giving seedings.

Most crucially, we need to acknowledge how pleasure-giving impunity has impoverished our imaginations and sapped our wills. It is easier to practice impunity, to remain soporific in its warm embrace of easy convenience. It is harder to let go of its hazy promises to turn away from the soft-lens focus it privileges to a harsher, more discordant, and yet more equitable future.

It is almost impossible to change how we dream, imagine, and function. This is our challenge, our task, our call to action.